January 20, 2016

H-1B vs. EAD/AP – Physician Choice?

H-1B vs. EAD/AP We are frequently asked: “if it is okay to use the EAD to moonlight or return to the United States (after traveling abroad) using the AP in lieu of applying for an H-1B visa?”

An Employment Authorization Document (EAD) allows an individual to work with any organization without restrictions.

An Advance Parole (AP) allows an individual to return to the United States after traveling abroad without showing a visa to re enter. Obtaining an EAD and AP and using them are two different things.

Using an EAD means working based on that EAD and not in H-1B status. A person can change from H-1B status to EAD “status” inadvertently, just by using the EAD to moonlight.

Similarly, using an AP means returning to the United States and showing the AP to re-enter. By re-entering the United States showing the AP, instead of the H-1B visa, the person changes “status” to parolee. This means that the H-1B status is no longer valid and the person must have an EAD to engage in lawful employment.

Please keep in mind that just receiving an EAD and/or AP does not change the H-1B nonimmigrant status, using them is what causes the lost of H-1B status.

EADs and APs are usually obtained by filing an I-485 adjustment of status application. Usually, we advise our clients not to use the EADs or AP and maintain H-1B status until their I-485 applications are approved and they are granted legal permanent residence or “green card.” However, for many reasons, physicians cannot always maintain H-1B status until their green card applications are approved and must use EADs and/or APs abandoning the H-1B status.

In general, using the EAD and AP while the I-485 application is in process should be okay. However, in the case of physicians subject to J-1 waiver obligations, using the EAD and/or AP can be problematic.

By law, physicians subject to J-1 waiver obligations are required to work in H-1B status for a period of three (3) years with the employer that sponsored the J-1 waiver and H-1B visa application s. Therefore, using the EAD to moonlight or the AP to re-enter the United States during the J-1 waiver three (3) year obligation period, will cause the physician to lose his/her H-1B status and jeopardize his/her J-1 waiver. If this happens, the physician can be subject to the two-year foreign residence requirement again.

We strongly advise physicians in general and J-1 waiver physicians in particular to carefully consider the option of using or not using EADs and/or APs and consult with an attorney before using these documents.