Can (or should) I file I-765 EAD?

[noront 6]

I pulled up the instructions for the EAD and noticed this line:

 

"If you are a lawful permanent resident, a conditional permanent resident, or a nonimmigrant only authorized for employment with a specific employer under 8 CFR 274a.12(b), do not use Form I-765."

 

I am currently in the US on an non-immigrant visa that only allows me to work for my foreign employer. I am seeking to adjust status based on my USC spouse. (But I am on a work visa, not a spousal visa.) 

 

Reading through the regulations here it does appear that my visa category falls under this section. 

 

So, am I not *allowed* to use Form I-765? Or is it that I don't *need* to apply for EAD with this form, but can do it if I want? I'd like to apply for both EAD and AP just in case, even if neither are technically required. 

[eckoin 211]

2 hours ago, noront said:

I pulled up the instructions for the EAD and noticed this line:

 

"If you are a lawful permanent resident, a conditional permanent resident, or a nonimmigrant only authorized for employment with a specific employer under 8 CFR 274a.12(b), do not use Form I-765."

 

I am currently in the US on an non-immigrant visa that only allows me to work for my foreign employer. I am seeking to adjust status based on my USC spouse. (But I am on a work visa, not a spousal visa.) 

 

Reading through the regulations here it does appear that my visa category falls under this section. 

 

So, am I not *allowed* to use Form I-765? Or is it that I don't *need* to apply for EAD with this form, but can do it if I want? I'd like to apply for both EAD and AP just in case, even if neither are technically required. 

You wouldn't need to apply for I765 if you were applying not as an AOS applicant, but as an applicant for certain work visas. 

 

For example, I was a TN status holder--a non immigrant work status. I didn't need an EAD; my TN status is what allowed me to work. 

 

You're applying to adjust status, so you're free to apply for an AOS EAD (category c9) or not. If your current work status doesn't expire for 2+ years, you could easily just not bother. If it expires in fewer than 2 years, might as well. 

 

As an AOS by marriage applicant, the above doesn't apply to you, but it's up to you to submit the application or not. 

[arken 4,197]

3 hours ago, noront said:

 

So, am I not *allowed* to use Form I-765?

As an AOS filer, you are allowed.

 

3 hours ago, noront said:

 

Or is it that I don't *need* to apply for EAD with this form, but can do it if I want? 

Correct.

 

3 hours ago, noront said:

 

I'd like to apply for both EAD and AP just in case, even if neither are technically required. 

That is the best option. They are free anyway with AOS.

[noront 6]

Thanks so much. I was a bit worried about how applying for an EAD might actually impact on my existing visa.

 

I have a duration of status visa (I-visa), so good as long as I am in the same position with the same foreign employer.

 

I wasn't sure whether applying to adjust my status and request new employment authorization would actually put me "out of status."

 

I do plan on staying in the same job so I'm hoping it's not a huge issue. But it would be nice to have the EAD.

 

I am required to travel outside the U.S. for work a few times a year (so I will definitely be applying for Advance Parole). I only travel to Mexico and Canada. I wasn't sure what would happen with my existing visa, or whether it would actually be replaced by the employment authorization if I left the US for a few days for work and returned to the border while my AOS case was being processed. Would I be allowed in on the same I-Visa or would it be something else if I have the EAD and AP? Any chance I could jeopardize my employment status in the U.S.? 

[eckoin 211]

26 minutes ago, noront said:

Thanks so much. I was a bit worried about how applying for an EAD might actually impact on my existing visa.

 

I have a duration of status visa (I-visa), so good as long as I am in the same position with the same foreign employer.

 

I wasn't sure whether applying to adjust my status and request new employment authorization would actually put me "out of status."

Applying for, and receiving it, wouldn't put you out of status; using the AOS EAD for employment would. 

Quote

I do plan on staying in the same job so I'm hoping it's not a huge issue. But it would be nice to have the EAD.

 

I am required to travel outside the U.S. for work a few times a year (so I will definitely be applying for Advance Parole). I only travel to Mexico and Canada. I wasn't sure what would happen with my existing visa, or whether it would actually be replaced by the employment authorization if I left the US for a few days for work and returned to the border while my AOS case was being processed. Would I be allowed in on the same I-Visa or would it be something else if I have the EAD and AP? Any chance I could jeopardize my employment status in the U.S.? 

And that's where it's good you asked. 

 

I is not a dual intent status, so by using AP--a benefit of AOS--you lose your I status. 

 

It's unlikely that you'll be allowed back in after you submitted your AOS application on your original I visa (ie not on AP); and if you are admitted, you AOS will be denied due to abandonment. 

 

So you have to apply for AP to travel for work, and since you'll be traveling on the AP, you'll lose your current status, so you need the EAD as well. 

Edited May 28, 2019 by eckoin

[noront 6]

Great thanks for the help! I'm actually putting in a concerted effort to get this application together pretty soon so now I'm really looking at the details and getting a bit nervous about making sure it's all correct.

 

So if I understand correctly - let's say I file for AOS and also file for EAD and AP at the same time. I don't travel outside the U.S. until I've received both EAD and AP (which, I gather, are on a single card once you've been approved?). Once approved for both I can travel outside the country if needed and then return to the U.S. and continue my same employment, but this time using the EAD? 

[eckoin 211]

2 hours ago, noront said:

Great thanks for the help! I'm actually putting in a concerted effort to get this application together pretty soon so now I'm really looking at the details and getting a bit nervous about making sure it's all correct.

 

So if I understand correctly - let's say I file for AOS and also file for EAD and AP at the same time. I don't travel outside the U.S. until I've received both EAD and AP (which, I gather, are on a single card once you've been approved?). Once approved for both I can travel outside the country if needed and then return to the U.S. and continue my same employment, but this time using the EAD? 

That is correct. You can "switch" to your AOS EAD as soon as you receive it, by letting HR know your work authorization documentation changed. 

 

You're not allowed to travel outside the US before you receive the AP (and after you applied for AOS and the associated AP) without abandoning your application. 

 

In almost all cases, AP and EAD are on the same combo card.