Employment Authorization Document and Travel Document

Transcription

1 Employment Authorization Document and Travel Document Anyone who is not a US citizen or permanent resident may need to apply for a work permit (Employment Authorization Document EAD) before they can start working in the United States. Below is a partial list: Who must apply for an EAD? Beneficiary of a pending I-485 Adjustment of Status; F-1 student seeking optional practical training; F-1 student seeking off-campus employment due to severe economic hardship; M-1 student seeking practical training after completing studies; Spouse or minor child of a J-1 exchange visitor; Spouse (not child) of an L-1 transferee; Fiance(e) of American citizens; V1, V2 or V3 visa holders; Refugees, asylees and asylum seekers; Person under Temporary Protected Status (TPS); Dependent of foreign government officials; Person granted with withholding of deportation or removal; Who do not need to apply for an EAD? US citizens or permanent residents (green card holders); Temporary workers authorized to work for specific employers; For complete instructions on eligibility, requirement, filing fees, where to file, etc., please read the instructions for Form I-765, Application for Employment Authorization (rev. 07/30/2007).

2 Do I Still Need an EAD if I m Under H1B? No. You are already authorized to work for the employer who sponsored your H1 visa. However, it is usually recommended to apply for an EAD with your I-485 application, in case you are unable to extend or maintain your H1B status in the future. Unlike H1B, an EAD allows you to work for any employer, or multiple employers at the same time (important: see the next question regarding H1B and EAD). Note that if you plan to leave your current employer after getting an EAD, there are complications that may affect your eligibility for the existing employment-based adjustment application. So in general, it is a good idea to have an EAD as a backup plan, even if you are in valid H1B status. Does using EAD void my H1B? Yes. Using EAD for employment will terminate your existing H-1B status. It doesn t matter whether you use the EAD to work for the same employer, another employer, yourself or only part-time. However, some immigration attorneys believe that although using EAD to work for your H-1B sponsoring employer will definitely void your H1 status, you are permitted to use EAD for a second job and retain H-1B status with original employer. This is debatable, and until USCIS publishes formal regulation, you will have to make a decision based on your risk tolerance level. Simply having an EAD, but never using it, does not affect your H1 status. If you have already used an EAD for work, you may be able to stop and resume your H1B status, thanks to the doctrine of

3 dual intent. However, the law is not very clear and USCIS has not released specific regulations to address some of the issues. Consult a knowledgeable attorney if you plan to use EAD, such as starting a side business or taking a part-time job. Do I still need my H1B if I already have an EAD? It depends. Although an EAD has many advantages over an H1B visa, it has one drawback: it expires the minute your i-485 is denied. An H-1B visa, on the other hand, allows you to continue working legally until the remainder of its validity period, leaving you precious time to react or seek other solutions. Denial of i-485 is relatively rare, but it does happen. People having arrest records, unauthorized employment or having been out of status need to be extremely cautious. Many employers are unwilling to keep extending H-1B s if the employee already obtained an EAD. If this is not the case, we generally recommend maintaining a valid H1 status until your green card application is approved. Do I still need my H-4 if I already have an EAD? Since H4 doesn t allow employment, it doesn t make sense to extend your H4 status if you intend to work and have already obtained an EAD. Do I need to renew my EAD? Yes. If you use an EAD for employment, you need to renew it every year. USCIS revised its policy in 2008 that EAD renewals cannot be filed more than 120 days prior to its expiration date. All EAD renewals filed too early will be rejected. It is

4 thus very important to carefully count the number of days before submitting an application. The time it takes for the USCIS to approve an application fluctuates greatly and also varies from service center to service center, so it is important to renew an EAD at the earliest opportunity, which means immediately after the 120-day mark. Do I Need an EAD to Travel Abroad? No. You don t need an EAD for travel purposes. When do I have to pay the new EAD fee? If you filed I-485 before July 30, 2007, you will have to pay the new $340 fee for renewing your EAD. If you filed I-485 on or after July 30, 2007, thus having paid the package fee, then no fee is required to file an application for employment authorization on Form I-765. You may file the I-765 concurrently with your I-485, or you may submit the I-765 at a later date. Note that the old I-485 fee was extended to August 17 this year to cover the lost time for people who were otherwise eligible for filing AOS under the July Visa Bulletin. There are other waivers for EAD filing fees; please read Form I-765 instructions carefully before submitting your application. What is a 2-year EAD? If you have a pending I-485, your I-140 has been approved, and a visa number is not available to you, you are eligible for employment authorization document (EAD) that is valid for two years. AOS applicants whose priority dates are current will continue to receive 1-year EAD s.

5 Advance Parole (AP) An advance parole is a travel document issued to an applicant with a pending i-485 adjustment of status case in order for him/her to return to the United States. If you leave the US without an advance parole, your i-485 will be considered abandoned. However, there is an exception for people in H, L, K or V status: you may return to the US using either an AP or a valid visa (H1, H4, L1 or L2), and it won t jeopardize your AOS application. It is very important to note that a person who has been out of status during their stay in the US is not advised to travel abroad until their I-485 is approved. Leaving the US may trigger a bar on re-entry, regardless of whether or not an AP was applied. If one has been out of status for more than 180 days but less than one year, s/he may be inadmissible for 3 years; an unlawful stay of one year or more would mean a 10- year bar from the date of departure. An advance parole may also be issued to people outside the United States and need to visit the US temporarily for emergencies. This usually happens when there is not enough time to apply for a visa. AP under such conditions are granted on a case-by-case basis by US consulates. Does the Use of AP Void My H-1B Status? Probably not. An H1 visa holder may enter the US using either an advance parole or a valid H1 visa. According to the Cronin Memo (5/16/2000), an H1 or L1 nonimmigrant re-entering using AP will be in parole status, but is eligible for H or L extension. If approved, they will then resume their nonimmigrant status. However, there are some debates regarding, and the law is not very clear as to, whether you

6 should immediately resume your H1 status upon entry. We have seen numerous cases where H-1B holders entered with AP and never had a problem with either H1 extension or AOS applications. However, this doesn t mean that the USCIS will not issue new guidelines in the future, taking a different direction. So people under H1 who intend to travel with an AP need to pay attention to future clarification from the USCIS. Is AP a Reentry Permit? No. A re-entry permit is issued to permanent residents who plan to live outside the US for one year or more, for returning to the US without having to apply for a returning resident visa.