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Consequences of Using Your EAD and AP While Your AOS is Pending

EAD AP

Most people who apply for adjustment of status (AOS) also apply for an employment authorization document (EAD) and advance parole (AP) at the same time. Because of the lengthy processing times for AOS applications, your EAD and AP will likely be approved prior to your green card. Using those benefits, however, comes with consequences you should be aware of beforehand.

The biggest risk is that you are no longer maintaining your nonimmigrant status in the U.S. if you use the EAD to work or AP to travel. So, if your adjustment of status is later denied, the EAD/AP that you have been relying on will also be denied or revoked. That is why it is common to maintain your nonimmigrant status while your AOS is pending – so that you have an added layer of protection. If your AOS is denied on a technicality, for example, you would be able to resubmit it if you had maintained your nonimmigrant status. If you did not maintain your nonimmigrant status, you may be forced to leave the U.S. and apply for a green card through the consulate abroad, and while waiting for approval outside the U.S.

Using AP Instead of Nonimmigrant Visa to Travel

If you travel outside of the United States and re-enter using your Advance Parole document instead of your nonimmigrant visa, you enter the United States as a “parolee.” Advance Parole is not a valid immigrant or nonimmigrant status. Entering the United States on Advance Parole is essentially being allowed to travel and enter the U.S. because you have an adjustment of status pending.

If you do travel and re-enter the United States as a parolee, your nonimmigrant status is effectively terminated. This creates a risk—if your adjustment of status is denied then your AP is also denied/revoked, so you would be unlawfully present in the U.S. because you have not maintained your other nonimmigrant status. If this were to happen, you could be forced to travel abroad and seek consular processing of your immigrant visa.

Consular processing is the process of applying for immigration benefits outside of the United States. Traditionally, consular processing is not the preferred method of applying for your green card. This is because of long processing times at many consulates abroad and because you are may not be eligible to travel to the U.S. while the case is in process. Lengthy processing times have only worsened with the pandemic. Therefore, consular processing is likely not the process you want to rely on.

Can I get back on my nonimmigrant status after entering the U.S. on Advance Parole?

If you do choose to travel using your Advance Parole document, thus terminating your nonimmigrant status, you may be able to get an “extension” of your H-1B or L-1 status. If successful, this would essentially put you back into valid H-1B or L-1 status and allow you to avoid the risk of falling out of status if your adjustment is denied.

USCIS policy allows H-1B extensions to be filed if you are still with the same employer and there is a valid and approved petition already in place. If the extension is approved, then you are successfully back on H-1B status and are not merely relying on your pending adjustment of status anymore.

It is important to note that this policy allowing H-1B extensions is based on a 22-year-old USCIS policy memorandum. The memorandum was drafted in anticipation of a final rule being passed to address this specific issue. However, that rule was never passed. In the past, USCIS has followed the guidance provided in this memorandum and extended it to dependents (H-4, L-2) as well. It is likely that USCIS will continue to follow the memo’s guidance. However, the memo is just that, guidance. Therefore, the safest method is to maintain your nonimmigrant status and not rely on this USCIS policy guidance, if possible.

Further, those who have a pending adjustment of status application and are not maintaining their nonimmigrant status (H-1B, L-1, etc.) must be approved for advance parole prior to leaving the United States. Otherwise, you risk denial of your adjustment of status. USCIS may determine that if you travel without Advance Parole approval, you do not intend on re-entering the United States and have abandoned your adjustment of status application.

Finally, if you travel on Advance Parole and your adjustment is denied while you are outside the United States, your Advance Parole is revoked, too. Without an Advance Parole document or valid nonimmigrant visa, you will not be able to re-enter the United States.

Does the USCIS extension policy apply to H-4 dependents?

The extension policy discussed above does not explicitly cover H-4 dependents. However, in the past, USCIS has been willing to approve H-4 extensions as well. So, if need be, USCIS will likely approve an H-4 extension, if a valid one exists, after an H-4 dependent is paroled into the United States.

As stated above, because this is merely USCIS policy, and policy that does not explicitly apply to H-4 dependents, the safest course of action is to always maintain your nonimmigrant status and not to rely on your advance parole document while your adjustment of status is pending.

Using Your EAD Instead of Your Nonimmigrant Visa

If you use your employment authorization card, the impact is similar to using your Advance Parole. Using your EAD instead of your work visa terminates your nonimmigrant status. However, there is one main difference in this situation. It is more difficult to return to nonimmigrant status after utilizing your EAD instead of a nonimmigrant work visa.

The extension policy discussed above does not apply to scenarios where your nonimmigrant status is terminated because you used your EAD instead of your nonimmigrant work visa. To get back on H-1B or L-1 status after using your EAD to work, you would have to get an approved consular processing H-1B, then you would have to travel and get your visa stamp.

Can I use my EAD for a second job?

You cannot work at your H-1B job and use your adjustment-based EAD to work a second job. It is not possible to mix and match your nonimmigrant status with your EAD. You can work multiple jobs using your employment authorization. You can also work multiple jobs on H-1B status as long as your H-1B petition has been filed correctly to reflect that. However, you cannot be employed using your EAD card and maintain your H-1B employment. You must choose one or the other.

Impact on Family Members

If you are on H-1B or L-1 nonimmigrant status and use your EAD or AP, then you personally are no longer maintaining your nonimmigrant status. Further, all family members on dependent visas (H-4, L-2) are no longer maintaining their nonimmigrant status either. The good news is that if your H-4 or L-2 dependents use their EADs to work or APs to travel, this does not affect your H-1B or L-1 status or other dependents on derivative status.

Filing a Second Adjustment of Status

Recently, due to processing backlogs and movements in visa availability, many employment-based adjustment applicants are benefiting from filing a second adjustment of status. Not maintaining valid nonimmigrant status means you are potentially not eligible to file a second adjustment of status to take advantage of quicker processing/advancing priority dates. So, if you have utilized your EAD or AP based on your pending AOS and failed to maintain your nonimmigrant status, you cannot file a second AOS and are tied to your original adjustment application. Therefore, if you would like to take advantage of the opportunity to file a second adjustment, it is crucial you maintain your nonimmigrant status.

What if I filed a second AOS while still maintaining my nonimmigrant status?

If you have maintained your nonimmigrant status and filed a second adjustments of status application, then you may be in the scenario where you have an EAD/AP card in hand (from your first adjustment) but your EAD/AP from the second AOS is still pending. While using the EAD from your first adjustment will terminate your nonimmigrant status, as discussed above, it will have no impact on your second adjustment application that is already pending. Using an EAD from one adjustment application will not “tie” you to that application. Both adjustments will remain in process and can be adjudicated accordingly.

As for the AP document, it is not as clear. As discussed above, it is always safest to travel and work using your nonimmigrant status while your adjustment is pending. If that is not possible, and you are considering using your AP from one AOS while your 2nd AOS is pending, we suggest you discuss your options with an attorney.

Interfiling

Interfiling is the transfer of underlying basis for one’s adjustment of status. In employment-based adjustments, as discussed here, it simply swaps a different job offer (such as an EB-2 I-140 approval) into your already pending adjustment that was based on another job offer (such as EB-3 I-140 approval). For a more in-depth discussion on interfiling, please visit this blog post.

Fortunately, using your EAD or AP does not limit your ability to submit an interfiling request. Further, using your EAD or AP after submitting an interfiling request does not impact the request, either. So, if you already used EAD or AP and are not eligible for a 2nd AOS application, you might still be able to take advantage of immigrant visa availability by using the interfiling option.

Contact Sam Shihab & Associates Today to Discuss Your Immigration Needs

As always, Sam Shihab & Associates is here to help you navigate the green card process. Using your adjustment-based EAD or AP can have unintended consequences. At Sam Shihab & Associates, our team of skilled immigration lawyers provides legal representation to clients throughout the United States.

While our law firm represents clients nationwide, we have office locations in Columbus and Dublin, Ohio, and Michigan, and Texas. Do not risk a denial of your petition by acting without the assistance of a Columbus immigration lawyer. Contact our office today by calling (866) 665-0001 or by completing an online form.

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