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Can H1B petition be filed while H4 EAD is pending?

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  • Can H1B petition be filed while H4 EAD is pending?

    My H1B extension was rejected (couldn't provide client letter) so I moved to H4 through consular processing.
    My spouse has her I-140 in process so we are planning to expedite that (Premium processing) and file for H4 EAD (I-765) for me. Since it takes about 3 months for I-765 to be approved for non-asylum seekers, what happens if another employer files for an H1B petition for me while I-765 is still pending?

    1. Does EAD(I-765) gets adjudicated first and then H1B? If true and H1B also gets approved, I understand that I might not be able to use the EAD because of COS to H1B
    2. Does H1B get rejected because of the pending EAD(I-765)?
    3. Does EAD(I-765) get rejected because of H1B petition? Or I do get an approved EAD but cannot use it (because I will not be on H4)

  • #2
    Originally posted by momsonrikky View Post
    My H1B extension was rejected (couldn't provide client letter) so I moved to H4 through consular processing.
    My spouse has her I-140 in process so we are planning to expedite that (Premium processing) and file for H4 EAD (I-765) for me. Since it takes about 3 months for I-765 to be approved for non-asylum seekers, what happens if another employer files for an H1B petition for me while I-765 is still pending?

    1. Does EAD(I-765) gets adjudicated first and then H1B? If true and H1B also gets approved, I understand that I might not be able to use the EAD because of COS to H1B
    2. Does H1B get rejected because of the pending EAD(I-765)?
    3. Does EAD(I-765) get rejected because of H1B petition? Or I do get an approved EAD but cannot use it (because I will not be on H4)
    Well, the clock for the C26 765 file does start until you are in H4 status, and therefore the I-129 file gets done first, then the 539, and then the 765. The H1B will not get rejected, but I don't see why you would want an H1B if you have work authorization through an EAD card. You will need to use the most recent nonimmigrant status, if you chose to get H1B status, you should stay in H1B status, until you get an EAD card as an H4. You cannot have both.
    This is purely my opinion and does not constitute legal advice.

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    • #3
      Originally posted by mindrd View Post
      Well, the clock for the C26 765 file does start until you are in H4 status, and therefore the I-129 file gets done first, then the 539, and then the 765. The H1B will not get rejected, but I don't see why you would want an H1B if you have work authorization through an EAD card. You will need to use the most recent nonimmigrant status, if you chose to get H1B status, you should stay in H1B status, until you get an EAD card as an H4. You cannot have both.
      Thanks mindrd for your response.
      I am currently going through the H4 EAD application process but I want to maintain my own H1 status to distribute the H1B revocation for either me or my wife. i.e. not put all my eggs in the same basket.

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