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 of 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.
A: Yes. Immigration law allows applicants to file multiple immigration petitions at the same time. Different immigration categories have different requirements.
A: No, they don’t affect each other. The adjudication of each of the multiple petitions is independent.
A: 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 of status to F-1 status will be denied.
A: Yes, because you demonstrate immigrant intent through 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.
A: 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-1B in the 6 year period before applying for the new H-1B.
A: 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. If you use an EAD and your I-485 is eventually denied, you will no longer be in a valid nonimmigrant status.
A: 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.
A: No, a denied I-485 will not have any effect on your H-1B status if you don’t use your EAD or Advance Parole.
A: No. You are in I-485 pending status or parolee status.
A: Yes. You can leave the US.
A: You will need to apply for an H-1B visa at the US Consulate abroad.
A: 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.
A: Your I-140 application will affect 1) your chance to apply for 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 an alien to have immigrant intent, and an I-140 application demonstrates immigrant intent.
A: 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 other visas and statuses that allow for dual intent such as L-1, O-1 and P.
A: The same as the answer to question 18.
A: The same as the answer to question 19.
A: You are in I-485 pending status if you use your EAD and/or parolee status if you use Advance Parole for reentry.
A: No. It is a legal stay pending the adjudication of your I-485 application.
A: 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.
A: 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 best 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.
A: 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 applications 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-1B 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 traveling abroad. When the alien 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, but is rather still under H-1B status, and his/her I-485 is preserved. An alien in this situation 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.
A: Yes. As an exception, your H-1B employment authorization will still be valid although you are in parolee status.
A: 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.
A: You are in parolee status.
A: You can get back to H-1B status by applying for an H-1B extension or H-1B transfer.
(Updated 10/4/2012 by AD)