Letting my H1B lapse and working on EAD linked to ongoing family GC application

[siddharthase08 0]

Hello everyone,
I would really appreciate if I could get your inputs on my following questions -

My situation
Currently I am on my first H1B (valid till August 2020), working for my sponsoring employer.
My wife is on L1A, and I am a co-applicant on her Green Card application from her employer.
We filed our GC application in June, 2017, and had our interview in Jan, 2019 this year. However due to the retrogration of past applications currently in force, we have not received our Green cards yet.
Both of us have received I-765 EAD cards (which we have renewed this year) valid for the next 2 years. However the EAD cards do not include the advance parole, so it is mentioned "Not Valid for Reentry to the US" on the card.

I have two questions -
1. I am leaving my current job on 30th September. My next employer would not be sponsoring or transferring my H1B visa, so can I let my H1B lapse, and work on my EAD card (valid for the next 2 years) ?

2. My last day at my current employer is 30th September, can I travel to India for a short trip from 26th to 30th October (these dates are within a month of my quitting my H1B employer) and re-enter without any issues ? Or would it not be advisable to go and re-enter given that my H1B job is over, and I would subsequently work on my EAD card ?
I am in the process of applying separately for an Advance Parole document as well, but I am doubtful if I will able to get one before 26th October.

Thank you so much.

[jan22 3,053]

With what document do you intend to re-enter the US??  The EAD is not a travel document.  You cannot use your H1B, since you will no longer be working for that employer (or any other H1B employer)...it would be fraud to present it at the Port of Entry and say you were coming back to work as an H1B employee.

[siddharthase08 0]

Got it ... thanks for the quick response. I was hoping maybe the 2/3 month "grace period" after I leave an H1B employer's job could work - but as you rightly said,  using the H1B to enter implies I am still working for the same employer, and that would not be the truth. I guess my best bet would be to get the advance parole document if I can before I travel.

 

And as for my question 1, you do not anticipate any problems as long as I dont travel, right ?

[jan22 3,053]

6 minutes ago, siddharthase08 said:

Got it ... thanks for the quick response. I was hoping maybe the 2/3 month "grace period" after I leave an H1B employer's job could work - but as you rightly said,  using the H1B to enter implies I am still working for the same employer, and that would not be the truth. I guess my best bet would be to get the advance parole document if I can before I travel.

 

And as for my question 1, you do not anticipate any problems as long as I dont travel, right ?

There is no "grace period" once you leave the US.

 

Your next problem is you are in H1B status now, right?  What status will you have after your job ends?  Did your wife's lawyer apply for a change of status for you? 

[siddharthase08 0]

Thanks that's clarifies the travel issue.

 

As for the other problem - No my wife's lawyer did not apply for any latest change of status for me. We are both on the same GC process. Would I be rendered "status-less" when my H1B ends ? Should I ask the lawyers to file for a new status between the lapse of my H1B and until we go get our physical GC ? Do I need to move to L2 status ? 

[siddharthase08 0]

I found the following paragraphs on another website ("https://www.alllaw.com/articles/nolo/us-immigration/what-happens-h-1b-holder-loses-job.html")

"

You might have already applied for your green card by filing the I-485 (adjustment of status ) application. Even green card applications can take months or years to receive approval (or denial) from USCIS. By applying for your green card, you are considered to be “in status” even if your underlying nonimmigrant status expires.

Applying for your green card grants a status of its own. For example, let’s say your H-1B is valid until April 1, 2019. You applied for your green card on January 1, 2019. You did not extend your H-1B. Once your H-1B expires, you still have legal status to remain in the country even though you no longer have H-1B status. By filing the I-485 application, U.S. law grants you lawful status as an adjustment applicant.

However, merely applying for your green card does NOT give you work or travel authorization. There are two ways that you can obtain these. The first is to keep extending your H-1B status, per the guidelines above. The H-1B visa allows you to work and travel in the U.S. and is unaffected by your green card application.

Or, instead of extending your H-1B, when you file your green card application you can also file for work authorization (Form I-765, referred to as an employment authorization document or EAD) and travel authorization (Form I-131, referred to as Advance Parole or AP). These documents will allow you to work in and travel outside of the U.S. while your I-485 is pending. If you’re going to use Advance Parole for travel, be sure USCIS approves your I-131 application before you leave the United States; if you leave the U.S. while the I-131 is pending, you may abandon your I-485 application.

However, it is important to remember that your EAD, AP, and lawful status as an adjustment applicant cease if and when USCIS denies your I-485 application. Therefore, it is almost always a better idea to maintain your H-1B status while you await USCIS’s adjudication of your I-485 application.

"

Right now my I-485 is in processing when my H1B would expire. Would you agree with the above article that I would still be "in status" to stay, and work with my EAD ? The last line is not valid in my case as our I-485 application has not been denied.

[siddharthase08 0]

Just to confirm, our I-485 is approved after our interview earlier this year. I am on the original AOS application with my wife.

[fs2439 46]

I think you may need to activate you ead/ap somehow, then you ate all set

[jan22 3,053]

22 hours ago, siddharthase08 said:

Just to confirm, our I-485 is approved after our interview earlier this year. I am on the original AOS application with my wife.

Then you should have no problem as long as you don't leave the US until you have an approved Advanced Parole.

[randomstairs 303]

1. Yes, you can work on your valid EAD.

2. You can't travel without the AP. That could jeopardize your AoS application.

 

When you filed for AoS (I-485) you should have also filed for both, EAD and AP. 

 

On 9/22/2019 at 9:04 PM, siddharthase08 said:

Just to confirm, our I-485 is approved after our interview earlier this year. I am on the original AOS application with my wife.

If your I-485 was approved you would be LPR already. So was it approved or not?