抱歉律師回答很長,我幾天前已經請教過並且打算renew H1,但是律師的回答讓我又糊塗了.如果H1比EAD安全得多(我不打算換工作),我寧願自己掏$800-$1000(律師說renew H1比EAD多的部分),但是如果兩者完全一樣,為什麽非要多掏錢呢? 非常感激!!!
我的問題:
From the current priority date, most likely it will take me at least a few more years to get my green card, it will be very painful for me if EAD renewal gets delayed. A few of my friends also consult with their lawyers and they all recommend them to renew H-1B even they have used all their 6 years allowance. They were told that if their 485 is denied while they renew for another 3 years H-1B, they will still have time to stay in US and appeal for their case while continue working; but with EAD, they will have to leave US immediately. If not considering travel abroad, do you think H-1B is safer and more reliable than EAD?
律師回答:
You are correct that it may take another few years for your priority date to become current and for you to obtain your green card. I realize that there are horror stories out there where EAD renewals have been delayed. The law requires USCIS to process EAD applications within 90 days or else issue interim authorization. The USCIS practice now allows for an inquiry to be submitted through the National Customer Service Center on day 70 if the EAD has not been issued. An inquiry will be submitted to ensure that the EAD application is adjudicated. If it is a renewal, there is guidance that allows for USCIS on-line approval to serve as employment authorization until the EAD card is received. In most instances, the EAD card is issued within the 90 days.
Of course, there is always the risk that the EAD card will not be approved. We cannot address the circumstances of others and the reasoning behind their delays.
As for continued eligibility to remain in the United States if the adjustment is denied and there is an underlying H-1B, the USCIS guidance is very specific as to eligibility for nonimmigrant status if the H-1B is beyond the six years. In USCIS Interoffice Memoranda from Michael Aytes, Acting Director of Domestic Operations, the guidance in the form of Q&A states:
Question 3. Are there cases where an alien, who has been granted an H-1B extension beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay?
Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:
A. Deny the application for labor certification, or, if labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;
B. Deny the EB immigrant petition, or
C. Grant or deny the alien's application for an immigrant visa or for adjustment of status [emphasis added].
If at any time before or after the filing of a single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies.
The above clearly shows that states that the basis for H-1B nonimmigrant status beyond the six years is lost even if there is an approved extension. This is the current guidance that we rely upon until USCIS issues new guidance or the final regulations. Since your H-1B six year limit is reached on 12/24/2008, you will be eligible for a 3 year extension based on the approved I-140 petition. However, if your adjustment is denied at any time after that date, the H-1B nonimmigrant status would not longer be available to you regardless of the extension expiration date. There is no appeal on the denial of an adjustment application although there may be some options to pursue to reopen the adjustment based on USCIS error or to renew the adjustment application in deportation proceedings. However, there is no provision in the guidance that suggests you are eligible for H-1B status extensions beyond the six year if pursuing any of these options. A pending appeal at the Administrative Appeals Office on the denial of an I-140 petition does allow for H-1B extensions.
We cannot address the advice provided to your friends by their attorneys, and rely on the available guidance provided by USCIS to address these issues.
Based on the above, we cannot recommend to you whether to remain under your H-1B or renew EAD for employment authorization. While you are able to obtain H-1B extensions in 3-year increments based on the lack of immigrant visa numbers available, it is not a safety net for lawful status if the adjustment is denied. Alternatively, the EAD must be extended annually and it too does not provide work authorization or status if the adjustment is denied. Please also note that USCIS is discussing the possibility for longer validity periods for EADs under adjustment applications, but only the yearly extension increments are available at this time.
Once you have reviewed the above, please let us know who you wish to move forward. If you wish to obtain the 3 year H-1B extension, you will be personally responsible for H-1B legal fees/USCIS filing fees that exceed the cost of 3 EAD extensions and filing fees (approximately $2520). This would be an amount of approximately $800 (more or less).
我的問題:
From the current priority date, most likely it will take me at least a few more years to get my green card, it will be very painful for me if EAD renewal gets delayed. A few of my friends also consult with their lawyers and they all recommend them to renew H-1B even they have used all their 6 years allowance. They were told that if their 485 is denied while they renew for another 3 years H-1B, they will still have time to stay in US and appeal for their case while continue working; but with EAD, they will have to leave US immediately. If not considering travel abroad, do you think H-1B is safer and more reliable than EAD?
律師回答:
You are correct that it may take another few years for your priority date to become current and for you to obtain your green card. I realize that there are horror stories out there where EAD renewals have been delayed. The law requires USCIS to process EAD applications within 90 days or else issue interim authorization. The USCIS practice now allows for an inquiry to be submitted through the National Customer Service Center on day 70 if the EAD has not been issued. An inquiry will be submitted to ensure that the EAD application is adjudicated. If it is a renewal, there is guidance that allows for USCIS on-line approval to serve as employment authorization until the EAD card is received. In most instances, the EAD card is issued within the 90 days.
Of course, there is always the risk that the EAD card will not be approved. We cannot address the circumstances of others and the reasoning behind their delays.
As for continued eligibility to remain in the United States if the adjustment is denied and there is an underlying H-1B, the USCIS guidance is very specific as to eligibility for nonimmigrant status if the H-1B is beyond the six years. In USCIS Interoffice Memoranda from Michael Aytes, Acting Director of Domestic Operations, the guidance in the form of Q&A states:
Question 3. Are there cases where an alien, who has been granted an H-1B extension beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay?
Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:
A. Deny the application for labor certification, or, if labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;
B. Deny the EB immigrant petition, or
C. Grant or deny the alien's application for an immigrant visa or for adjustment of status [emphasis added].
If at any time before or after the filing of a single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies.
The above clearly shows that states that the basis for H-1B nonimmigrant status beyond the six years is lost even if there is an approved extension. This is the current guidance that we rely upon until USCIS issues new guidance or the final regulations. Since your H-1B six year limit is reached on 12/24/2008, you will be eligible for a 3 year extension based on the approved I-140 petition. However, if your adjustment is denied at any time after that date, the H-1B nonimmigrant status would not longer be available to you regardless of the extension expiration date. There is no appeal on the denial of an adjustment application although there may be some options to pursue to reopen the adjustment based on USCIS error or to renew the adjustment application in deportation proceedings. However, there is no provision in the guidance that suggests you are eligible for H-1B status extensions beyond the six year if pursuing any of these options. A pending appeal at the Administrative Appeals Office on the denial of an I-140 petition does allow for H-1B extensions.
We cannot address the advice provided to your friends by their attorneys, and rely on the available guidance provided by USCIS to address these issues.
Based on the above, we cannot recommend to you whether to remain under your H-1B or renew EAD for employment authorization. While you are able to obtain H-1B extensions in 3-year increments based on the lack of immigrant visa numbers available, it is not a safety net for lawful status if the adjustment is denied. Alternatively, the EAD must be extended annually and it too does not provide work authorization or status if the adjustment is denied. Please also note that USCIS is discussing the possibility for longer validity periods for EADs under adjustment applications, but only the yearly extension increments are available at this time.
Once you have reviewed the above, please let us know who you wish to move forward. If you wish to obtain the 3 year H-1B extension, you will be personally responsible for H-1B legal fees/USCIS filing fees that exceed the cost of 3 EAD extensions and filing fees (approximately $2520). This would be an amount of approximately $800 (more or less).
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