We have received many inquiries regarding the impact of I-140 and/or I-485 filing on H-1B status. In order to help you have a comprehensive understanding to the issues related to I-140/I-485 filing for H-1B holders, we are providing this FAQ. In addition to addressing the impact of filing I-140/I-485 on H-1B holders, this FAQ discusses issues related to EAD, Advance Parole, travel with a pending I-485 and some other issues.
1. Can an H-1B holder apply NIW / EB-1 and PERM at the same time?
Yes. The immigration laws allow applicants to file multiple immigration petitions at the same time. Different immigration categories have different requirements.
2. If yes, do they affect each other?
No, they don’t affect each other. The adjudication of each of the multiple petitions is independent.
3. If an H-1 holder applies for an I-140 and I-485, will it affect his/her H-1 status?
No.
4. My spouse is in H-4 status and will apply for an I-485 with me. Will this affect her H-4 status?
No.
5. My spouse is in H-4 and will apply for an I-485. Will this affect her future application for an F-1?
Yes. Filing an I-485 demonstrates the applicant’s immigrant intent. As F-1 visas are for those with non-immigrant intent only, there is a high chance her new F-1 visa application or application for change to F-1 status will be denied.
6. I am on an H-1B sponsored by a university. Will my application of an I-140 and I-485 affect a potential future application to work for a company under an H-1B?
No. However, when you apply for another H-1B to work for a company in the future, you will be subject to the H-1B annual quota if you have not worked for a quota-subject employer under H-B before.
7. I am in H-1B. Will my application of an I-140 and I-485 affect a future H-1B transfer application?
No.
8. I am in H-1B and will apply for NIW, I-485, EAD and Advanced Parole. May I use EAD to work after its approval?
Yes, you may use the EAD to work for your current employer or any other employer. However, if you use the EAD, you may be considered to have abandoned your H-1B status, and will be considered in I-485 pending status. This may impact your future extension or transfer of H-1B status.
9. I am in H-1B status and will apply for an I-485, EAD and Advanced Parole. Should I use my EAD to work, or stay with H-1B?
You may use it, but you need to evaluate the risk. If you use EAD to work, you may lose your H-1b status. If that is the case, and your I-485 is rejected, you will be out of status immediately and will need to leave the U.S. To reduce that risk, we suggest you not use your EAD before your I-140 is approved.
10. I am in H-1B status and will apply for an I-485. If my I-485 is denied, will it affect my H-1B?
No. It will not if you don’t use your EAD or Advance Parole.
11. I am in H-1 status and will file an I-140. Moreover, I plan to go to school and change to F-1 status in one year. Does my application of an I-140 affect my future application for F-1 status?
Yes, since your immigrant intent is shown by your I-140 application. There is a high chance your new F-1 visa or status change application will be rejected because of the immigrant intent that you showed with your I-140. F-1 visas are reserved only for those with non-immigrant intent.
12. I am in H-1B status. If I use EAD or Advance Parole under my I-485, do I still have H-1B status?
No. You are in I-485 pending status or parolee status.
13. My H-1B application is pending. If I submit an I-485 and/or EAD petition, will that influence my H-1B application?
No.
14. I am in H-1 status and have applied for an I-140. Can I travel outside the US?
Yes. You can leave the US.
15. How do I come back?
You will need to apply for an H-1B visa at the US Consulate abroad.
16. Does my application of an I-140 affect my chances of getting an H-1 visa?
No. H-1 visa/status allows "dual intent", which means that a person may choose to return to his/her home country or may choose to move on to permanent residency status in the U.S. Filing an I-140 shows an alien’s immigrant intent, but it doesn’t influence your future application for an H-1B visa.
17. I am in H-1B status and have applied for an I-140 and I-485. I have a valid H-1B visa. May I leave the US and come back the US by using my valid H-1B visa?
Yes.
18. I am in H-1B status and plan to apply for an I-140. What applications or status does my I-140 affect?
Your application of an I-140 will affect 1) your chance to apply F-1, F-2, B-1, B-2, J-1, and J-2 visas; 2) your entry into the US on an F-1, F-2, B-1, B-2, J-1 and J-2 visa; and 3) your chance to change your status in the US to F-1, F-2 B-1, B-2, J-1 or J-2. Establishment of immigration intent may impact all non-immigrant visa applications other than H and L. That’s because all these visas and status categories do not allow the alien have immigrant intent and your I-140 application has already demonstrated immigrant intent.
19. What does it not affect?
It does not influence your current H-1B status and any applications for H-1B transfer or for H-1B visas from a US Consulate abroad. Neither does it impact L visa and status.
20. I am in H-1B status and plan to apply for an I-485. What applications or status does my I-485 affect?
The same as the answer to question 18.
21. What does it not affect?
The same as the answer to question 19.
22. I am in H-1B status and plan to apply for an I-485, EAD and Advance Parole. If I use EAD or Advance Parole, what is my status?
You are in I-485 pending status if you use your EAD and/or parolee status if you use Advance Parole for reentry.
23. Is parolee a valid non-immigrant status?
No. It is a legal stay pending your I-485.
24. If I use EAD or Advance Parole and my I-485 is denied, can I stay in the U.S. legally?
No. You will be out of status. When you use EAD or Advance Parole, you lose your H-1B status. If your I-485 is denied, you will be out of status and have to leave the U.S. However, you may have a chance to change back to H-1B status in the US after using your Advance Parole.
25. I am in H-1B status and would like to file an I-140 and I-485. What do you suggest that I do as far as my status is concerned?
We suggest that you keep your H-1B status at least until your I-140 is approved. If your I-140 immigration petition is sponsored by your employer, it is better not to change jobs (if you wish to do so) until your I-485 application has been pending for 180 days.
Despite this, when you travel abroad, you should apply for an Advance Parole before you leave the U.S. You can bring the Advance Parole with you, but you should try to apply for the H-1B visa first. If you get the H-1B visa, use it to re-enter the U.S. If your H-1B visa application is denied, you may use the Advance Parole to re-enter the U.S. Thus, your Advance Parole is a back-up that will let you return to the U.S. in case you cannot get an H-1B visa.
26. I am in H-1B status and will file an I-485. If I travel outside the US without an Advanced Parole, is my I-485 application abandoned?
No.
As a general rule, an alien who has filed for Adjustment of Status in the US needs to apply for Advanced Parole and use the Advanced Parole to come back to the US in order to keep his/her Adjustment of Status pending. Conversely, if one travels abroad while his Adjustment of Status is pending without an Advanced Parole, his Adjustment of Status is considered as abandoned even if he comes back to the US with a valid visa.
However, unlike other visa types, aliens in H-1B status who have pending Adjustment of Status do not need to apply for Advance Parole to go abroad if they fulfill certain conditions. As long as the H-1 B visa holder maintains his/her H-1 B status while away from the U.S., he/she may try to apply for an H-1B visa to re-enter the U.S. and continue working for his / her H-1B sponsoring employer after his/her travels abroad. When he/she comes back with a valid H-1B visa to work for his/her H-1B sponsoring employer, he/she is not considered to be in parolee status; he/she is still under H-1B status, and his/her I-485 is preserved. He/she does not need an EAD to work. Furthermore he/she can still apply for an extension of H-1B status or transfer to a different employer.
27. I am in H-1B status and will file an I-485. If I travel outside the US and come back using Advanced Parole, may I work for my H-1B sponsoring employer?
Yes. As an exception, your H-1B employment authorization will still be valid although you are in parolee status.
28. In 27, do I need an EAD to work for my H-1B sponsoring employer?
No, USCIS issued a special memo indicating that an alien does not need an EAD to work for his/her H-1B sponsoring employer after he/she travels outside the US and comes back on Advanced Parole
29. In 27, what is my status?
You are in parolee status.
30. In 27, how can I get back to H-1B status?
You can get back to H-1B status by applying for an H-1B extension or H-1B transfer.
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The attorneys and supporting professionals at Zhang & Associates, P.C. are committed to providing high quality work and professional services to our existing clients. Since the recent changes in the availability of visa numbers, our firm has experienced a very significant surge in case intake. In order to concentrate our efforts and time to provide high quality work for our existing clients, the firm has decided to temporarily suspend free evaluations and all case intakes starting from June 20, 2007. However, we are still taking cases from our existing clients and also provide fee based consulting services to non-existing clients. Moreover, we will be continuing to update our website (www.hooyou.com) frequently with articles regarding recent immigration developments and their appropriate legal interpretations.
In the moment of change, our existing clients are our top priority.
(06/26/2007)
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