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

(Continued from last week's article)

Can my spouse on an H-4 status work on the EAD?

It is only possible to maintain H-4 status if one does not work in the US. If your spouse chooses to work on an EAD, he or she will no longer be considered to be maintaining H-4 status. However, the spouse can still be in the US pursuant to the pending adjustment of status application.

Does the same hold true for an L-2 spouse?

No. An L-2 spouse has an independent basis to apply for an EAD and thus is allowed to seek employment. Hence, an L-2 spouse who works pursuant to an EAD obtained as a result of that status will still maintain L-2 status. If my H-4 spouse works on an EAD, can I still maintain H-1B status.

Yes.

If I choose to work on an EAD, can my spouse maintain H4 status?

No.

The H-4 status is dependent upon the principal H-1B's status. If the H-1B ceases to maintain status, the spouse also loses the H4 status. Can my spouse and I obtain an EAD and still maintain our respective H statuses? Obtaining an EAD in itself, without working pursuant to the EAD, will still allow you to preserve your H statuses. One can obtain an EAD for non-work related benefits such as to apply for a social security number or to use as a fall back in case one falls out of H-1B status.

If my spouse chooses to work on an EAD, can she get back into H-4 status if she ceases to work on her EAD in the future? If your spouse wishes to regain H-4 status, she will have to leave the US and enter on an H-4 visa in order to restore her H-4 status. You would need to be maintaining H-1B status.

If I am on H or L status do I need an advance parole to enter the US?

Although advance parole is always required if an adjustment of status applicant needs to travel overseas, those maintaining H or L status are not required to travel under advance parole. However, under these circumstances, it is important that you have a valid H or L visa stamped on your passport for re-entry into the US. Under a new rule, it is no longer necessary to submit proof of the adjustment filing when being admitted on an H or L visa back into the US.

Under what circumstances can I travel on advance parole and still be able to maintain H or L status? The Cronin Memo states, "an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition.

If the Service approves the alien's application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification."

This strategy is advantageous for those who do not wish to spend time overseas applying for an H or L visa at a US consulate, but still wish to maintain H or L status. The Cronin Memo goes on to state that a person paroled in who previously maintained H or L status need not obtain an EAD. There is an implicit assumption that such a person is still maintaining H or L status.

Can the spouse of a person in the above situation apply for an H-4 visa at the US consulate?

Although the Cronin Memo does not explicitly state so, it can be argued that since the principal spouse is still maintaining H-1B status even though admitted under advance parole, the dependent spouse should be able to obtain an H-4 visa at the US consulate. At this time, the State Department has not opined on this issue.