Dark Star
May 9, 2021
Can my wife and son work with their AoS EADs BEFORE their I-539s get adjudicated?
My H1B and my wife and son's H4 statuses have expired last April 2020. Then we filed O-1A for me and O-3 for my wife and son. My O-1A visa/status was approved in June 2020. I-539 petitions for the O-3 status of my wife and son have been pending for one year. Meanwhile, our I-485 petitions have been filed in October 2020. Last month, my wife and son received their EADs (under C09) due to their pending I-485s. Can my wife and son work with their AoS EADs BEFORE their I-539s get adjudicated? If my wife and son now start working with their AoS EADs BEFORE their I-539s get adjudicated, will their I-539 get jeopardized? If the answer is yes, will they be considered out-of-status from May 2020 to September/October 2020? #EAD #I-765 #I-539 #O-3
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T SMay 9, 2021
congratulations on the o-1! I think you should talk to an experienced immigration lawyer. it is worth having the peace of mind, and your situation has a lot of moving parts.
Nallavanukku NallavanMay 9, 2021
Unlike H1B, O1 visa is not a dual intent visa. Please consult your lawyer. I have seen a lot of misinformation and ill-advise from well meaning members.
Dark StarMay 10, 2021
Thank you, TS and Nallavanukku Nallavan for your advice!
According to Page 12 of this USCIS document (https://www.uscis.gov/sites/default/files/document/foia/Nonimmigrant_Empl.pdf), "The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be the basis for denying an O-1, P, or R-1 petition, a request to extend such a petition, or the alien’s admission, change of status, or extension of stay. The alien may legitimately come to the U.S. for a temporary period and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the U.S".
Does it mean that filing the I-485 petition poses no impediment to the approval or extension of an O-1 or O-3 visa application?
Nallavanukku NallavanMay 10, 2021
That is exactly how I read it, but I am not an attorney. I definitely believe you need to speak to one. I wish you and your family the very best.
Pete EMay 11, 2021
following
Pete EMay 11, 2021
I am in a similar situation. I am expecting EAD from adjustment of status (pending EB2NIW). I also filed H4 through my spouse and it’s still in processing. If the EAD comes, can I use it to work without voiding my pending H4 (assuming unfortunately EB2 NIW case gets denied)?
Samudra HoqueMay 12, 2021
Hi Pete, You should not use EAD before H4 adjudication.
