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Adjustment of Status: Maintaining H-1B Status vs. Using the Green Card EAD/AP

Every year, the United States allocates a number of visas for non-immigrants who are seeking work in a specialty occupation. Likewise, the U.S. Congress also allows a limited number of employment-based green cards to be distributed. The green cards are distributed based on country of birth, not country of citizenship thus more populous countries tend to have far fewer cards available. It is because of this that foreign nationals seeking employment-based green cards are assigned a priority date. This date will be based on when the employer filed either a PERM or I-140 application. When the dates becomes “current” —meaning that there is no backlog or wait for the green card —a foreign national may apply for an adjustment of their current status, whatever that status may be.

However, it must be noted that merely applying for the I-485 Application to Register Permanent Residence does not provide for work authorization and the ability to travel. In order to do either of these things, a foreign national needs to obtain either: (1) H-1B status (or any other nonimmigrant status that will allow work authorization and travel), or (2) a Green Card Employment Authorization (“GC EAD”) along with Advanced Parole (“AP”). Collectively, the GC EAD and AP are referred to as a Work and Travel Permit. Both nonimmigrant status and the GC EAD/AP are valid options however, each of these options has pros and cons with one another that should be seriously considered when beginning the application process. Specifically, this article looks at whether it is more advantageous for an applicant to maintain their H-1B status or to go ahead and obtain GC EAD or AP. 

H-1B Status

An H-1B visa is a visa that applies to people who work in specialty occupations and has a number of qualifications that are required for an individual to meet in order to apply for this type of visa. Every year, the United States allows for up to 65,000 H-1B applications for new beneficiaries seeking temporary employment in America under what is known as the H-1B cap. In addition to the 65,000 that is already earmarked, an additional 20,000 are available to individuals who have earned a U.S. master’s degree or higher. This visa is locked to a specific employer and, any change in employment, will require a transfer of status from one employer to another. Whenever an employer applies for and receives an H-1B approval for a foreign national, there are a number of benefits that the foreign national is thereby entitled to.

First, the H-1B allows the foreign national to work in a specialty occupation for a qualifying company.  In order for a foreign national to legally work in the United States on a temporary basis, they must file a petition with the United States Custom and Immigration Service (“USCIS”). This authorization, once granted, typically allows for three years (or until the end of employment with the filing employer) of uninterrupted status as long as they follow all stipulations pertaining to that visa. Additionally, an H-1B holder may also choose to extend their status for an additional three years following the end of their first time. A H-1B holder may not continue to extend beyond a six year time limit unless they have previously either applied for and been granted status on an I-140 Immigrant Petition for Alien Worker or a PERM application. At any time, if the H-1B status holder finds themselves out of status, they are expected to leave the country immediately.

Second, the H-1B allows a foreign nation to freely travel in and out of the United States. The travel may be personal or professional so long as the holder still has a valid visa stamp. Much like the work portion of the H-1B, if the H-1B visa is extended, the H-1b holder may continue to travel until their visa expires.

Work and Travel Permit

As previously stated, a work and travel permit is the term used for a combined GC EAD as well as an AP.  While, most recently, the USCIS started issuing both items on a single card for certain applicants, the two are technically separate designations.

A GC EAD is a government issued ID that an individual who has applied for permanent resident given to show that they are legally able to work in the United States. In order to obtain a GC EAD, an employer needs to first file a Form I-485 Application to Register Permanent Residence or Adjust Status. While the I-485 is pending, the beneficiary of the application can then request a GC EAD by the filing of Form I-765 Application for Employment Authorization. Furthermore, if the I-765 is filed for at the same time as the I-485, the cost of filing for the EAD is completely free.

If granted, the GC EAD will allow a foreign national to legally work in the United States. The GC EAD is not locked to a particular employer or specific occupation so a foreign national may use the GC EAD to work anywhere they wish in the United States. The GC EAD is generally issued with a one or two year validity period and can be extended indefinitely until a decision is made on the adjustment of status. The extension or renewal may occur starting from four months before the expiration of the current work permit.

An AP is permission for an immigrant to enter the United States for a specific reason. The individual entering is not fully admitted but, instead, is considered “paroled”.  In order to obtain an AP, an employer needs to first file a Form I-485 Application to Register Permanent Residence or Adjust Status. While the I-485 is pending, the beneficiary of the application can then request an AP by the filing of Form I-131 Application for Travel Document. The AP allows an individual to leave the United States without abandoning their Adjustment of Status. On re-entry into the United States, the individual would just need to present their AP card to the border officials in order to be permitted to return to the U.S. as a parolee.

Like the GC EAD, an AP is good for a period of one to two years. If you wish to receive a GC EAD and AP on one card instead of two, both the I-765 and I-131 will need to be filed at the same time.

With both the GC EAD and AP cards, an individual may travel and re-enter the country without abandoning their status. However, if a party currently holds H-1B status and chooses to leave the country while their adjustment of status is pending and they hold AP, upon return, the individual will invalidate the H-1B status. This is extremely important to remember if there is a need to leave the country and you currently hold H-1B status while awaiting a decision on your I-485. The invalidation of your status due to your travel could ultimately lead to you needing to leave the country if your green card application is denied and you no longer hold an underlying status.

H-1B vs. GC EAD/AP

If an individual is already on H-1B status and is presented with the option to apply for permanent residency, the choice of whether to maintain H-1B status or apply and use the GC EAD/AP is a tough one. Between the categories, there are a number of differences that could help determine which is the best option for you or your employee.

  • Length of Duration: H-1B (usually a 3 year validity period and can be renewed beyond 6 years under certain circumstances) vs. GC EAD/AP (valid for one or two years and renewed until a decision is made on your adjustment of status application)
  • Ability to Work: H-1B (job specific; applicant cannot change positions or move employers without refiling the I-129 to include new employer, updated duties, or change in work location) GC EAD/AP (flexible; neither card is linked to one specific employer or job thus you are able to work when and where you wish to)
  • Travel: H-1B (able to freely leave and re-enter the United States without abandoning one’s status) vs. GC EAD/AP (able to travel without abandoning I-485 status; If you currently have a H-1B visa and you leave the country with AP while your status is pending, travel will invalidate your H-1B visa and, thus, you will lose your underlying status)
  • Time: H-1B (generally shorter time at around six (6) months, or within 15 days with premium processing) vs. GC EAD/AP (may generally take anywhere from six (6) to eight (8) months to process and approve)

While there is no definitive answer on approaching either maintaining H-1B status or applying for a GC EAD/AP, the best choice that a foreign national can make when determining which their best course of action is is to consult with a qualified business immigration attorney. If you have any questions about which option may be best for you or concerning H-1B, Green Card Employment Authorization, or Advanced Parole, you can set up a consultation with any of our Reddy & Neumann, P.C. attorneys.

By: Kristina M. Hernandez & Avery Krushall