Maintaining Status While Applying for Adjustment of Status

People ask us every day whether they should use their EAD cards or H-1B classification for work authorization after they apply for adjustment of status. In most instances, we recommend that they use EAD cards. I’d like to take a moment to discuss the reasons why we make this recommendation.

There is no clear “law” on the subject. That is, nothing in the law requires an applicant for adjustment of status to use one or the other. The “best” solution is always the one that best satisfies the applicant’s unique needs. With this in mind, let’s examine the pros and cons of each.

Maintenance of H-1B status is not without cost. The CIS filing fees are $320, plus $500 for the anti-fraud fee it is a first filing (such as an employer transfer), and $750 to $1,500 for the ACWIA fee. This does not include attorney’s fees. There are two other “costs” that must be counted as well. If you travel, you must have a valid H-1B visa to re-enter. This means that you may have expend time and money renewing your H visa. Also, with an H visa, you may not accept work from anyone other than your petitioning employer. Otherwise, you are in violation of your H status.

Historically, there have been three main arguments I’ve in favor of using H1B. First, there is the “just in case” argument. We feel that this falls into the “monsters under the bed” or fear of the dark kind of superstitious dread argument. “I don’t know what might happen, but I want to keep my H-1B just in case.” We’ve always felt that if you can’t articulate the reason for doing something, it isn’t a very good reason.

The second reason is a concern that if the applicant’s I-485 is denied, the applicant can revert to H-1B status. We believe this to be a specious argument also. Most I-485 denials result from I-140 denials. If your I-140 has been approved, the odds of your I-485 being denied drop to almost zero. The two remaining reasons for I-485 denials are status violations prior to filing and fraud. Both of these reasons impact H-1B validity as well and if an I-485 is denied for either reason, it is doubtful that the applicant would be allowed to resume H-1B status.

The third reason, and in our opinion the only valid reason, arises in unusual situations where the principal applicant has applied for adjustment of status but his or her spouse hasn’t. In such cases, it is essential that the principal applicant maintain H-1B status so that the spouse remains eligible for H-4 status.

Finally, AOS applicants who have given up H status should understand that there is nothing to prevent them from re-applying for H classification should something go disastrously wrong with their AOS application. If the applicant is still eligible for H classification, there is nothing to prevent them from re-acquiring it later. The INS position is that if an applicant is lawfully present in the US, and his or her AOS is denied, the applicant may move back into H status if otherwise qualified.

Employment authorization documents (EAD) are presently valid for one year at a time. The CIS is about to extend this validity to three years. The same is true of advance parole (AP) documents. The EAD/AP combination provides an applicant with a simple, inexpensive alternative to trying to maintain H status while applying for AOS. More importantly, EADs give an applicant job flexibility. With an EAD, an AOS applicant who wishes to exercise his or her right to job portability need only show an EAD card in order to accept new employment immediately. Similarly, an applicant who travels and uses AP as a re-entry document need never bother with having to make an appointment and apply for a new visa while abroad.

If someone wishes to maintain their H-1B status while they are applying for AOS, that is their right. They should do so, however, only if they understand these facts and still wish to maintain H status. They should not do so out of fear of the unknown or a misunderstanding of the facts.

We continue to receive e-mail questions about maintaining H-1B status while awaiting an adjudication of a pending application for adjustment of status. When we recommend against doing this, except in unusual circumstances, we typically are asked the question “But what happens if my AOS is denied?” Without going into all of the reasons why we don’t consider that a serious concern, let’s explore a very specific issue for a moment.

Assume that one has been in H-1B status for four years and now applies for adjustment of status. The applicant has a choice: He or she may continue to use H-1B status or may switch over and use an EAD/AP combination. Putting aside the “what if something wholly unexpected happens” argument, it is pretty clear that the EAD/AP combination offers greater flexibility than trying to maintain H status. With the CIS about to extend the validity of those documents to three years, it is also less expensive to use EAD/AP in place of an H.

For argument’s sake, however, let’s assume that the applicant insists on maintaining H status while his AOS is pending. The average AOS processing time is three to five years. This will put the applicant beyond the six year limit for H-1B stays. No need to worry, the AC21 legislation allows for extensions of stay beyond six years. Right?

The answer is, perhaps. While the AOS is pending, the applicant may receive extensions beyond six years. Let’s assume, however, that the “what if” situation occurs and the AOS is denied. Well, in that case, conventional Internet wisdom teaches us that the AOS applicant can just stay here in H status. As is often the case, conventional Internet wisdom is wrong.

In a policy memo dated April 24, 2003 and titled “Guidance for Processing H-1B Petitions as Affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (Public Law 107-273): Adjudicator's Field Manual Update AD 03-09,” the CIS took the following position:

“(8) Extension of H-1B Status Based on a Pending Labor Certification Application or Employment-Based (EB) Immigrant Petition. As discussed in of the AFM, if the filing date of the labor certification application or the EB immigrant petition is 365 days or more prior to the filing date of the extension application, and the application is adjudicated on or after November 2, 2002 (the effective date of the legislation), the alien is eligible for an extension of H-1B status beyond the sixth year. The Secretary of Homeland Security is required to grant the extension of stay of such H-1B nonimmigrants in one-year increments, until a final decision is made:

to deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification; to deny the EB immigrant petition, or to grant or deny the alien's application for an immigrant visa or for adjustment of status.” [Emphasis added]

In this example, the applicant would no longer be eligible for H status beyond six years. Since the applicant remained in H status while waiting for his AOS adjudication, all of that time would count against the six year limit. The applicant would not be allowed to remain in the US in H status following the AOS denial because that would involve a post-six year stay.

In effect, by insisting on remaining in H status while waiting for his AOS to be adjudicated, the applicant guaranteed that he would not be able to remain in H status if the AOS was denied. Also, if an H1B commits even a technical violation of status, all remaining employment becomes unauthorized. This can result in the applicant's AOS application being denied for having more than 180 days of status violations since his or her last entry before filing for AOS.

One additional reason for making sure that you have a valid EAD at all times is so that you can claim unemployment benefits in the event you lose your job. H nonimmigrants do not qualify for unemployment insurance. If you have an EAD, however, and can be referred out for job interviews, you do qualify for UI, even if you don't yet have your green card.