IndiaPost.com - Interplay between employment authorization, travel & H or L status

As hundreds of thousands of would be immigrants filed adjustment of status applications during the window between July 17, 2007 and August 17, 2007, it is unlikely that cut-off dates in the Employment-based Second (EB-2) and Third Preferences (EB-3) will advance very rapidly.

For instance, the State Department Visa Bulletin for December 2007 indicates that the EB-2 cut-off dates for India retrogressed to January 1, 2002 and to January 1, 2003 for mainland born China. In the November 2007 Visa Bulletin, the EB-2 cut-off date was April 1, 2004 and January 1, 2006 for India and China respectively.

This implies that people will have their adjustment of status applications pending for long periods of time. We will address some of the common questions that are being asked by adjustment applicants.

What is the benefit of maintaining H-1B status while I still have an adjustment of status application pending?

It is a good idea to continue to maintain the underlying H-1B status. The "dual intent" nature of the H and L visas permits one to still have the underlying nonimmigrant status while an adjustment of status application to permanent residency is pending. If for any reason the adjustment of status application is denied, the H-1B status will hold you in good stead in such a worst case scenario.

Moreover, Immigration and Customs Enforcement (ICE) has taken the position that a pending adjustment of status application will still render a noncitizen amenable to removal proceedings. Most important, having an underlying H1B status will ensure that you can continue to work in an uninterrupted manner.

If you were only to rely on the employment authorization document (EAD), arising as a result of the adjustment application, it would only have a validity period of one year. The extension would have to be filed over three months in advance, and then too, there would be no guarantee that it would be approved prior to the expiration of the prior EAD.

One is not permitted to continue working if the prior EAD has expired, and the application for the new EAD has been filed but not yet approved. On the other hand, the timely filing of an H-1B extension with the same employer, even though not approved, allows the noncitizen to continue working for a period of 240 days.

Does the same logic apply to someone who wishes to exercise portability under the adjustment of status application?

Yes. 180 days after filing the adjustment application, an applicant is able to "port" to a same or similar job and still be able to process the application towards permanent residency. In the event that the USCIS does not approve portability, especially where the new employment is not considered similar to the old employment, you can still rely on the underlying H-1B status rather than be completely stranded with a denied adjustment application.

Can I maintain my H-1B status for my current employer and work part-time on my EAD for another employer?

According to a legacy INS Memo from Michael D. Cronin, dated May 25, 2000 (Cronin Memo), you can only maintain H-1B status if you work for the employer who filed the H-1B petition on your behalf. If you work for another employer, even part-time, you would not be maintaining your H-1B status. You would then have to rely on your EAD for both of your jobs.

If you wish to maintain H-1B status, it may be possible to have the part-time employer also concurrently file an H-1B extension petition on your behalf.

(To be continued)