A frequent question we get from clients is whether they should renew their H-1B (or other nonimmigrant) status once their Employment Authorization Documents (EADs) are approved through a pending adjustment of status application. With very few exceptions, we always recommend renewing H-1B status. This is so for several reasons.
Letting go of H-1B status while an adjustment of status application is pending places one in what is called “a period of authorized stay” (POSA). POSA is not status. In addition, the POSA is tied to the adjustment of status application. This is important because if the adjustment of status application is denied for any reason (including USCIS error or losing your job and your employer withdrawing the petition) POSA ends and the client has to leave the country immediately. It can be very disruptive to one’s life and their employer’s business activities. If one remains in H-1B status, even if the adjustment application is denied, the person can continue to live and work in the US while we resolve the adjustment issues or even refile. In addition, maintaining H-1B status can also facilitate short notice travel outside the US as H-1B status holders can leave the US without Advance Parole (AP) and not abandon their adjustment application. When an AP is expired and it is being renewed, one cannot leave the US until the AP is actually approved.
Another reason to remain in H-1B status is the protections of INA 245(k), which forgives certain periods of unlawful presence or unauthorized employment. Use of Advance Parole to enter the US as opposed to entering in H-1B status extinguishes the 245(k) protections. Changes of status are also impossible when one is in POSA or has used AP to reenter the US.
There are certain conveniences to using an EAD and AP. The cost of an H-1B petition is avoided. One can travel and come back to the US without having to deal with the consulate if their H-1B visa is expired. However, there are also hindrances to using AP, such as placement in secondary inspection, which means a wait of several hours before being allowed to proceed into the U.S.
Overall, while there are some benefits to using EAD and AP, unless it is completely infeasible to renew H-1B we always recommend staying in full nonimmigrant status and not in POSA. POSA may be convenient but it can lead to serious consequences.
