Eb2 Eb3 downgrade - can primary maintain H1B while spouse uses 485 EAD?

On getting an EAD after the down grade of my I 140 from EB2 to EB3 and filling the I 485 concurrently, If dependent uses the EAD, but the primary does not, then is it possible for the primary applicant to retain the H1B so that he also has the Eb2 on hand.

If the unused EAD of the primary applicant is not renewed for a year, then is it possible to renewing the EAD next year .


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Yes, the spouse should be able to use her EAD while primary maintains their H1B.

EAD renewal can be done anytime i485 is pending.

@sanjay1 I am also in the same situation and I am getting h4 EAD and use it instead of 485 EAD. I will continue to be on H1 and spouse will be on H4/EAD. That’s the safest option in my opinion.

Hi Anil, I am also on the same boat. I applied for my H4 EAD extension but it’s more than 10 months still I didn’t receive it. I am planning to use the EB3 downgraded EAD to work. My hubby would still be in H1 status.

  1. If I use the Eb3 EAD will I be out of H4 status?(though I am not using the AP for traveling)
  2. If I use EB3 EAD and hubby is still with H1 then in future if the final action date becomes current with EB2 can we still interfile?
  3. If I use the EB3 EAD can I still do extension and maintain the H4 status(Hubby still maintains H1)?
  4. If I use the EB3 EAD will it any way affect my hubby H1 status?

If H4 uses EB3 i485 EAD and primary stays on H1B, then H4 status is lost.

H4 will not be able to convert to EB2 without going back on H4 status.

Thanks for the reply. Only if I am travelling out of the country and reenter the country with the AP then my I-94 will show the parole status and hence H4 status is lost. That too I assume is lost only temporarily until the time comes for H1B/H4 extension and we file for H1B/H4 extension and get new I94 with H1B/H4 status. So with this I can come back to H4 status and apply for interfiling when possible. Is this understanding/assumption right? Suppose I am using the I485 EAD and have not used my AP, my current I-94 would still show as entered on H4. In that case if the final action date becomes current in EB2 then we both can interfile for EB2 right? Is my understanding correct?

Yes, that’s a possiblity.

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Can you please clarify me that if I/my wife get EAD on EB3 140 and my wife uses the EAD (Eb3 I140) then can’t we be able to use our EB2 later just in case if PD moves faster for EB2 ?
With above situation, can we interfile if EB2 date moves faster than Eb3 date though we used EAD with EB3 I140?

Note: We filed EB3 I-140 as NEW

Any response to this is greatly appreciated…

Please read my answer above. I have already given clear reply.

Hi Anil

As per your reply the spouse has to maintain a H4 status if at all EB2 has become current then spouse cannot convert to EB2 without going back on H4.
But what is the spouse is also has her own H1 and is not on H4 status?

Its the same rule irrespective of H1B or H4 visa. Just think of it as a ‘non immigrant’ visa and you can use any one of those to enter the US if you do not want to use the Advance parole.