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I-140 NIW approved. Do i need to apply for an EAD?

Published Aug 30,2015 By GCforPhD

Question:

First, let me thank you. I got recently approved i-140 through NIW, using your package. I am on J1 visa and I am applying for adjustment of status. Do I have to file i-765 in order to keep working for my current institution? And what will be the expiration date on the EAD card if my husband who is on J2 visa files  i-765 with i-485?

Thank you,

Answer:

First congratulations on your i-140 success. 
 
Since you mentioned that you are applying for adjustment of status, we assume you either do not need J1 waiver or already have one, and your priority dates are current. 
 
You only need to apply for I-765 if you plan on not using your J1 and J2 visa. Some applicants apply for an EAD because it is more flexible as they can work with any employer. If you wish to apply for I-765 then you would need to apply for yourself and your husband. EADs are usually granted for a period of one year. Renewals generally take 120 days. 
 
 
Best wishes
GCforPhD
 
Question:
 
Thank you for your advise. My husband has EAD currently based on his J2 visa. Does he need to reapply?
 
Answer:
 
If you apply for an EAD  AND start using it then both of your J1, J2 status are invalid. At that point he would need a EAD based on i-485 application. If you do not intend to apply for an EAD and use it then his current EAD is valid. 

 
 Question:
 
Do you think we can both apply for the EAD, in such a way that my husband will use his new EAD but will not and stay on my J1?
 
Answer
 
If you both apply for EADs and any one of you start using an EAD other would have to use their new EAD. 

 
If your husband uses new EAD, you would have to simply show your employer that you have a new EAD and would like to use it as work authorization instead of J1.  

 Question:

I work in uiniversity now can I still stay on my J1 and husband will work with the new EAD?
I have heard that it is recommended to stay on J1 while the adjusment of status is pending. Is this correct?

 

Answer:

If any one of you use a new EAD then both of your default status is “pending adjustment of status” (ie pendng i-485) and J1, J2 are invalid. So the answer to your first question is no.

 
It is not necessary that you stay on J1, unless you have a specific reason to do so.

 

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HW
HW
8 years ago

Hi I have applied for my J1 waiver and I140, both are pending at the moment.

May I know what do I need to apply for an EAD?
Do I need a J1 Waiver to apply for an EAD?
Can I submit my EAD application now while I140 is pending?

Thanks.

Jayeesh Bakshi
Jayeesh Bakshi
7 years ago

Hello,
My F1 OPT EAD expires in July and am applying for NIW soon. I am from India and would like to know can I work with my current employer till my NIW application is pending ?

Tigran Kalaydzhyan
Tigran Kalaydzhyan
7 years ago
Reply to  Jayeesh Bakshi

Hi Jayeesh,

If your F1 expires, pending I-140 by itself does not allow you to work (or even stay in the U.S.). Normally, it is possible to file I-485 and I-765 together with I-140 to obtain the EAD. However, you can’t do this if you were born in India.

kunal shah
kunal shah
7 years ago

Hi, I am plannig to apply for EB2 NIW but since I am from India my green card will take years to come. my question is once my I-140 approves can I apply for EAD and start working or I need to wait till I can file I-485 (for many years)?

Thank you,

Tigran Kalaydzhyan
Tigran Kalaydzhyan
7 years ago
Reply to  kunal shah

To my knowledge, it is not possible to obtain EAD on the basis of approved I-140 before the priority date is current.

Moji Abosede
Moji Abosede
6 years ago

Thank you so much for all the useful tips and advice. I am a PhD student in Electrical Engineering in the US and my EB2-NIW was approved few days ago. I’m planning to move on to the I-485 stage and apply for EAD through I-765. My NIW petition was based on my research and publications on signal processing in electrical engineering. About a month ago, I accepted a job offer as a process engineer with one of the tech companies and the job function (even though it is in electrical engineering) has very little to do with signal processing. I would like to know if resuming that job with an approved EAD will have any effect on my I-485 application? I mean must I only work as a researcher on signal processing or I am fine as long as my job is in the electrical engineering field.

Tigran Kalaydzhyan
Tigran Kalaydzhyan
6 years ago
Reply to  Moji Abosede

Congratulations with the NIW approval! Did you use our packets or hired a lawyer? You should be fine if you do electrical engineering, it doesn’t have to be exactly the same topic, because these subtleties are not obvious for USCIS officers. And you will deal with some kind of signal processing in electrical engineering anyway.

Moji Abosede
Moji Abosede
6 years ago

Thank you so much for the response. I used some information from your website during the I-140 filing and in drafting my reference letters and other application packets but I eventually hired a lawyer to file the petition on my behalf. Back to my previous question, my main concern is that the process engineer job description has nothing to do with signal processing and it has nothing to do with my PhD research work. I’m leveraging on my other skill sets (based on my previous industrial experience) to do the process engineer job. So I’m worried whether it is appropriate to work in electrical engineering or I MUST take up a job offer related to my PhD research while my I-485 (based on my approved EB2-NIW) is pending?

Tigran Kalaydzhyan
Tigran Kalaydzhyan
6 years ago
Reply to  Moji Abosede

Hi Moji,

Formally, you can work at any job while your I-485 is pending. The other question is that USCIS expects you to work in the field you used in the petition after you obtain the green card. Changing your field immediately (say, within 6 months) after getting the green card may create problems when you apply for the U.S. citizenship in the future. It is hard to tell how well can USCIS judge differences between fields, but I would expect that they can’t distinguish between “signal processing in electrical engineering” and “process engineer in electrical engineering”. Please consult with your lawyer regarding this, because I could be wrong and I do not know any precedent, when a person had troubles after switching to another branch of a broader category of science/engineering.

Moji Abosede
Moji Abosede
6 years ago

Thank you so much for the clarification! I am very grateful.

Ali
Ali
5 years ago

I have pending I-140 NIW. Now am applying for I-765, I-485 for EAD+AP. My wife had EAD as J2 visa status, her EAD application is pending now. What I can write in form I-765 now for pending NIW case:
1) Permission to accept employment? or Renewal of my permission to accept employment?
2) Have you previously filed Form I-765? (Do need to write yes and mention about EAD she has as J2 visa status)
3) Her category will be same as mine (c) (9) ?

Tigran Kalaydzhyan
Tigran Kalaydzhyan
5 years ago
Reply to  Ali

1) If she had EAD before, then it will be a renewal of permission in her form.
2) If she previously filed Form I-765, then, obviously, one has to answer “Yes” under “Have you previously filed Form I-765?” in her form.
3) Yes, her category should be the same, as yours.

Joshua
Joshua
4 years ago

Good morning house,
Please i have Pending I-140( EB2) (i filled pettition as someone with advance degree) but i filled originally with I-765, I-485, I-131.
My I-765 and I-131 had been approved.
My Question sir/ma:
1. can i use my work authorizarion to work anywhere?
2. can i use my work authorization to file for my kids
Thank you for your anticipating response

BlogSupport
BlogSupport
4 years ago
Reply to  Joshua

Yes, you can work if your I-765 was approved. I am not sure I understood the second question. What do you want to file for the kids?

Joshua
Joshua
4 years ago
Reply to  BlogSupport

thank you, i want to get there SSN

Joshua
Joshua
4 years ago

their SSN since they are still under 18

BlogSupport
BlogSupport
4 years ago
Reply to  Joshua

It depends on their immigration status and various other circumstances, please consult with a social security officer.

Lynda
Lynda
4 years ago

I am currently a PhD student in epidemiology and I plan on submitting my application for I-140. I will like to submit concurrent applications for ‘EAD’ and ‘Change of Status’ altogether.
I’ve been told that peradventure I get my EAD approved while waiting for my I-140 approval, I can be permitted to work. Is this different for me since I’m currently in school? Can I still be approved for the EAD considering that my application will state that I am still enrolled in school?

BlogSupport
BlogSupport
4 years ago
Reply to  Lynda

Getting EAD and changing the status is in no conflict with being a student. Please keep in mind that once you file I-485, you may not be able to renew F1/J1 and you shouldn’t enter the U.S. with those visas, otherwise your adjustment of status can be considered abandoned.

Alex
Alex
3 years ago

Hello, thank you for all your help! I filed concurrently (plus EAD and travel) using your package and I just got approved for my EAD and travel parole, I should get it in a couple of weeks . My concern now is that the fields I specified in my NIW application are generally only open to permanent residents and citizens so it may be impossible to get such a job with my EAD. Is it legal for me to use my EAD in any other job? I just really need to put food on the table and pay my rent. Is there any risk of this being a problem by the time my i140 and i485 are being processed? Thanks

Alex
Alex
3 years ago
Reply to  Alex

P.S. I have no other visa or status, since I have already graduated with the PhD in May.

BlogSupport
BlogSupport
3 years ago
Reply to  Alex

This should be discussed with a lawyer. Logically speaking, if during the interview you can show that you have a solid work plan in your NIW field, then working in an unrelated field while I-140/I-485 are pending should not be a problem. However, please contact an immigration attorney – many of them have a free first consultation.

Joao
Joao
3 years ago

Hi everyone,
My partner and I are ready to file form I-140 and were considering filing concurrently for I-485, I-765 and I-131. We are on a J visa and our priority dates are current.

However I currently hold an EAD as a J2 dependent that is valid for 10 more months. By the rules it seems like I wouldn’t be able to apply for a new EAD right now as one cannot apply more than 120 days before the expiration date of a valid EAD. What does that mean for our application? Should we wait a few months to file everything together? If my wife files her part now, will that render my EAD invalid since it is tied to my J2 status?

Thanks in advance

BlogSupport
BlogSupport
3 years ago
Reply to  Joao

I think it is better to talk to an immigration attorney regarding filing I-765. You could also file I-140 first and then file the I-485, I-765 and I-131 forms later in the process, while I-140 is pending or approved. If your EAD is valid for 10 months, then I believe the J-visa status is valid for both of you for at least 10 months, so you don’t really have to file concurrently.

Meke
Meke
1 year ago

Hello,
what would be the best scenario in EB2 NIW track for the visitting scholar, applied mathematician but came as a researcher in the Quantum and Classical AI fields under J1 visa (3 kids – 11, 10, 6 and spouse with J2 and EAD expiring in Sep, 2023) if No Objection Favorable Recommendation is granted from DOS and DS2019 form expires in May, 2024?

BlogSupport
BlogSupport
1 year ago
Reply to  Meke

what do you mean by “the best scenario in EB2 NIW track”?

Sushil Kumar Shakyawar
Sushil Kumar Shakyawar
1 year ago

Hi,
I tried to find answers in other people’s messages but couldn’t.
I am on J1, and my wife is on J2. She is currently working on J2-EAD. We have almost 2 years from now until our J visa and EAD expire. We are preparing for i140 and I am pretty sure that it will be approved based on my research profile. Now, my simple question is that how should we proceed so that my wife doesn’t get any break in her job?
I will really appreciate your response.

BlogSupport
BlogSupport
1 year ago

Did you file I-485 together with I-140? If not, then I-140 approval should not affect your wife’s EAD.

Ramachandran
Ramachandran
10 months ago

Hi
I am in H-1B, and my NIW I-140 was approved recently. I am planning to apply for EB1A I-140 soon. Can I apply for my spouse’s EAD using my NIW I-140?

BlogSupport
BlogSupport
10 months ago
Reply to  Ramachandran

Congratulations. Where was your spouse born?

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