Hi melancholy,
(1) Someone told me that once our application accepted, H1 is
canceled. Is it true? If it's true, will he be able to continue to
work and live here even before the permission to work is given by INS.
I'm sorry it has taken so long to post this but as with most things
concerning immigration, the answer needed some digging to get to the
bottom of it. In short, if he continues on his current course, your
husband will be able to stay in the U.S. but will not be able to work
until his EAD card is in his hands. In order to continue working, he
must keep his H-1 status by applying for an extension to his present
employment (if the extension doesn't come through before the original
expiration date, there is an eight month grace period).
>>> EAD option
"A change of status must be filed before the current status expires.
This allows you to remain in the U.S. after the I-94 card expires
while the application is pending, but does not allow you to work
during this time."
http://www.columbia.edu/cu/isso/visa/scholar/HO_scholar_maintain_status.html
Until you have an EAD issued to you as a pending adjustment applicant,
you cannot work."
http://www.americanlaw.com/q&a78.html
Employment Authorization Document(EAD)
"Between the time the adjustment of status is application is filed and
the green card is approved, the applicant is considered to be in legal
status as an "applicant to adjust status."
Effective July 31, 2002, I-485 (also EAD and Advance Parole) can be
applied at the same time as applying for I-140, provided the priority
date is current. This rule is effective immediately. There is sixty
day comment period on this rule but applicants can still file it
immediately.
For those whose I-140 is pending, I-485 can also be filed prior to the
approval of I-140. Receipt notice I-797 for I-140 must be submitted
along with I-485 application to establish the eligibility.
While it is hoped that it will reduce the total processing time for
greencard processing, just in case I-140 is denied for some reason,
the person would loose all the filing fees for I-485. This rule also
will reduce the necessity to file 7th year H1 extension."
" If USCIS does not approve or deny your Employment Authorization
Document application within 90 days, you may request an interim
Employment Authorization Document. You must go to your local USCIS
district office and bring with you proof of your identity and EAD
application receipt."
" If the non-immigrant visa status is expiring after filing adjustment
of status application and before receiving EAD, the person can still
work but the employer may be fined by allowing unauthorized person to
work."
If you are planning to work using EAD, you need the actual EAD card
before you can start working on it. Mere approval message on the phone
system is not enough."
http://www.immihelp.com/gc/aos/
>>> Extension option
"Note that as long as the immigration service receives the extension
petition prior to the original expiration date, there is a 240-day
grace period of employment authorization. This grace period, however,
does not enable travel outside the U.S. after the original expiration
date."
http://oie.ucsc.edu/is3/sch-h1faqs.php
Ability to Work While Adjustment is Pending:
"As a result of the June 1, 1999 interim regulation (mentioned above),
aliens in H-1 or L-1 status (and their dependents) are not precluded
from extending or maintaining their nonimmigrant status while their
adjustment of status applications remain pending. An alien who
continues to maintain H-1 or L-1 status rather than to obtain an
unrestricted employment authorization will still retain such status if
the adjustment application is denied.
If the alien is required to seek advance parole, he or she should
apply for an unrestricted employment authorization. This is because an
alien who is "paroled" into the United States is no longer within the
nonimmigrant status he or she had before departure. Also, any
derivative status of an accompanying spouse or child arising from the
principal alien's previous nonimmigrant status is lost once the alien
returns under parole."
http://www.americanlaw.com/aos.html
How Do I Extend My Nonimmigrant Status?:
How Do I Apply?:
"...your employer should carefully read and file a CIS Form I-129
(Petition for Nonimmigrant Worker) and any supporting documentation"
When Should I Apply?:
"We recommend that you apply to extend your stay at least 45 days
before your authorized stay expires, but the USCIS Service Center must
receive your application by the day your authorized stay expires."
http://uscis.gov/graphics/howdoi/extendstay.htm
FORM I-129 Petition for a Nonimmigrant Worker:
http://uscis.gov/graphics/formsfee/forms/i-129.htm
>>>>>>>>
(2) My understanding is that along with I-485 (green card
application), I must sumbit affidavit of support; Since my husband is
working in US right now, do I still have to do it, or is it enough for
my husband to submit proofs of his employment and income?
Yes, it is the family combined income that will be taken into account,
not just your husband's. It will be to your benefit to come up with as
many resources as you can. USCIS just wants to make sure that your
family will have enough income to support itself rather than depending
on public support. See the following Income/Poverty Guideline.
I-864 (Affidavit of Support) (Petition type: Spouse of U.S. Citizen, Within U.S.)
"The US CIS needs to make a determination that the applicants' family
(specifically, the foreign national spouse) will not become a "public
charge". In this regard, employment and financial documents, and Form
I-864 (and I-864(A)) assures the US CIS that applicants are
financially viable. It is possible to also have this form completed
by other family members who can become "sponsors." If the foreign
national spouse has accepted public benefits, the "public charge"
criteria may become an issue."
Income/Poverty Guideline
"Whether submitted initially or at the adjustment interview, the US
CIS will verify that the applicant's household income is above the
annual Poverty Guideline (125%), by examining the current financial
standing of the applicant's household income (W-2, employment
verification letters, bank statements, assets). Additionally, the
Poverty Guideline must be met for three (3) years preceding the date
of admission (adjustment of status interview). Financial viability
information is additionally included in the I-864 Affidavit of Support
Form."
http://www.mnllp.com/enginfoFAMIV.html#Form%20I-864
Additional Link of Interest:
EAD/AP vs. H1:
"Please note that it is possible to get your H-1B visa approved for
more than 6 years in some cases depending upon your employment based
green card processing status. Please refer to the appropriate section
on H-1B visa page to find out more how you can extend your H-1B visa
for more than 6 years, either 1 year at a time or 3 years at a
time. "
http://www.immihelp.com/gc/aos/eadap_h1.html
I hope I've been able to help you sort through the immigration maze.
If you have any questions, please post a clarification request
*before* closing/rating my answer and I'll be happy to reply.
Thank you,
hummer
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