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emploment based I485 appeal and EAD

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  • emploment based I485 appeal and EAD

    I was wondering if someone,s employment based I485 is rejected and the appeal is in process, can they still get an EAD to work. Please help.

  • #2
    I was wondering if someone,s employment based I485 is rejected and the appeal is in process, can they still get an EAD to work. Please help.


    • #3
      Your I-94 allows you to be "in-status" until the date you're out of payroll (usually your termination date), after that date, you will inevitably become "out of status", but don't despair because the INS allows H-1B holders to remain in this situation for a maximum of 60 days with no penalties. You have these 60 days to (i) find a job; (ii) go home or (iii) adjust your status. There are two ways to adjust your status; you could apply for F-1 status (student) or B1 status (visitor). notice that I say status, because the visa will have to be issued outside the country, but for purposes of being "in status" don't worry about the visa which is only used to travel outside USA; B1 status will buy you 6 months and the F-1 however much time is specified on your I-20. you need to make sure that you adjust your status BEFORE 60 days past your termination date, that way, you won't be out of status which will hinder future applications for H1-B transfers.If you adjust your status to F-1 or B-1 before 60 days past your termination date, they will issue you another I-94. You can not get EAD if your petition is rejected. Go back to your country!


      • #4
        Thanks for your reply, Nothing bad has happened yet. I mean my I485 is still pending. I have been transferred to local processing center from California service center for an interview without any obvious reason. My original job is still there. I think about the bottom line all the time depending upon the circumstances. I was wondering if the local office denies my grren card and i appeal, Am i still eligible to work if the appeal is in process. i dont have H1b, it is only my EAD based on pending I485. However, i am eligible to apply H1b. But the numbers are restricted on that, 65000 per year( Thanks to the new rules of Government and @ 40000 are already taken for 2005 ). My worry is due to present circumstances about immigration quata decreases in this country and upheavel of anti immigrant party due to inhumane Septembr 11. Please reply. Thanks again. My question is if the appeal is pending on I485, are you eligible to apply for work permit or to work, if your work is still there.


        • #5
          There are several specific rules that apply for issuance of EAD for those who file concurrent I-140/I-485 applications.
          · An applicant can apply for an EAD either along with I-485 application or any time after that as long as I-485 application is pending. If EAD is not issued by USCIS service center within 90 days, an applicant can obtain interim EAD at local district office.
          · 90 day clock stops ticking when the service center issues RFE for initial evidence with reference to the underlying I-140.When the requested initial evidence is received by the service center, 90 day clock starts to run all over again. Previously suspended time does not count in counting new 90 days.
          · EAD is issued "valid from the date of decision" and does not retroactively go back to the expiration date of the current EAD, if you are renewing EAD. If there is a gap between two EADs, and if the applicant works during that period, that would be considered as an unauthorized employment.
          Keeping above rules in mind, it is advisable to file EAD along with filing I-485 application, even if you have valid/unexpired H1/L1 visa. Just getting an EAD does not put you in EAD status, but using it does. Please look at EAD/AP vs. H1 for more information. In case the person is laid off and in case the person is eligible for AC 21 and new employer is willing to do AC 21, but not willing to file new H1 petition, EAD would be very useful. In case the person reaches 6 years limit on H1B, in that case also, EAD would be very useful.

          The primary applicant and his/her spouse can apply for work permit(Employment Authorization Card or 'EAD' in short) which allows the spouse to work for any company and the primary applicant for another part time job or side business without any need to file H1B visa, as long as the primary applicant keeps working for the employer who filed his/her greencard. You must file an USCIS Form I-765 (Application for Employment Authorization) by mail with the USCIS Regional Service Center that serves the area where you live. The application for EAD may filed either concurrently with adjustment of status application or after that. The current filing fee is $175 payable by check/money order and payable to DHS

          You also have to submit two immigration photographs (ADIT style) taken within 30 days of sending the application to USCIS, front and back of your I-94 card, front and back copy of your last EAD(if you had one).

          If USCIS does not approve or deny your Employment Authorization Document application within 90 days, you may request an interim Employment Authorization Document. You must go to your local USCIS district office and bring with you proof of your identity and EAD application receipt.
          List of USCIS Local offices.

          If the non-immigrant visa status is expiring after filing adjustment of status application and before receiving EAD, the person can still work but the employer may be fined by allowing unauthorized person to work.

          If you are planning to work using EAD, you need the actual EAD card before you can start working on it. Mere approval message on the phone system is not enough.