Should I Apply for an EAD or AP Based Upon My Adjustment of Status Application?

While your green card application is pending you may apply for I-765, work authorization (EAD) or I-131, advance parole (AP). In general, USCIS can issue these benefits separately or as a combo card. The card looks similar to an Employment Authorization Document (EAD) but includes the following language “Serves as I-512 Advance Parole.” Thus, the combo card serves as an EAD and Advance Parole (AP). These benefits are valid for 1-2 years.

The EAD/AP card may be applied for at any time while the green card application is pending. Please note the current processing times for these applications are approximately 8 months. Additionally, at this time, USCIS has not implemented an additional filing fee for these forms but plans to do so.

Below are various Pro and Con considerations of applying and/or using an EAD/AP while your green card application is pending.

Standard I-485 Filing Considerations:

Pros:                                                                                                                                                  

The EAD/AP may be useful as a backup in case the underlying nonimmigrant visa status (H-1B or L) is not extended or renewed.

In December, the following rules and restrictions will be implemented: 1) new H-1B prevailing wage rule; 2) specialty occupation rule; and a 3) third party placement restriction. These changes may result in additional scrutiny and difficulties in obtaining extension approvals.

If you chose to file for these benefits, unless your underlying nonimmigrant visa status is not extended or renewed, our office recommends for you to not use these documents, for the following reasons.

Cons:

If you use the AP upon re-entry into the country, then you will have been paroled into the U.S. and not “admitted.” The significance of not being “admitted,” is that you will: 1) lose your underlying nonimmigrant visa, and 2) if you have had prior unlawful presence in the U.S. may be inadmissible to adjust.

If your I-485 is denied and you have no underlying nonimmigrant status, then you will begin to accrue unlawful presence. Once you stay beyond 30 days with unlawful presence then USCIS may place you in deportation proceedings.

Downgrade Filing Considerations:

Cons:

Our office urges you to maintain underlying nonimmigrant visa status until new I-140 is approved because if your I-140 is denied, then your I-485 will be automatically denied.

If your nonimmigrant status remains valid, and you decide to use either the EAD or AP then you will in effect be “marrying” the category you have currently filed your adjustment of status under and will no longer have your nonimmigrant visa status, as previously mentioned. This means that you will not be able to re-file, if later on you were interested in changing your filing category.

Further, if your spouse (Derivative) uses the EAD or AP then they will be considered “married” to the filed category. Although it will not directly affect your ability to switch categories; it will place the family in an unwanted position, as you likely would not want switch categories without your spouse being able to do the same.

 

By: Rahul Reddy

Rahul is the founding partner of Reddy & Neumann P.C. His practice covers employment-based immigration, in which he represents corporate clients in far-ranging industries. 

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