Temporary Employment Authorization While the I-485 is Pending
While the I-485 is pending, and until adjustment is approved, a scholar already working for NYU in H-1B status can retain that status as long as the I-797 is still valid and s/he is working at NYU under the terms of the petition filed. If it appears that the six years in H-1B status will expire before the I-485 is adjudicated, a scholar whose Labor Certification or I-140 was filed at least 365 days before the expiration of the sixth year in H-1B status, may, if the I-140 is still pending, extend the H-1B visa beyond the six-year maximum, in one-year increments, until the Adjustment of Status is adjudicated. A scholar who wishes to work for or receive honoraria from an employer(s) other than NYU before the I-485 is adjudicated, can apply, concurrent with submitting the I-485 or while it is pending, for an employment authorization document (EAD) from USCIS and receive work authorization in 1-2 year increments. An application for employment is made on Form I-765. The fee is included in the I-485 fee and covers any subsequent extensions. USCIS is required to process EADs within 90 days. Using an EAD technically terminates one’s H-1B status though a scholar can regain H-1B status by traveling and reentering the U.S. with valid H-1B documents.
- Scholars in O-1 or E-3 status may not retain O-1/E-3 status once they re-enter the U.S. after having filed an I-485, but rather must apply for employment authorization while the I-485 is pending.
- Dependents in H-4 status may also, at the time of filing an I-485, surrender their H status and request employment authorization.
- Dependents in O-3 or E-3 status will also lose O-3/E-3 status once they re-enter the U.S. after having filed an I-485 and may, if they choose, file for employment authorization.