Dr. William:

I am currently on H-1B status, and I have filed my NIW application and the I-485 application. If I use the EAD and then my I-140 is denied, but the EAD is not expired, can I still work until the EAD expired, or I must leave US immediately? Thank you.

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Answer:

If your I-140 application is denied, then your I-485 application will be denied also. Therefore the EAD is no longer valid. So you should stop to use the EAD to work, since it becomes unauthorized employment after the invalid or expiration of the EAD. 

To keep the legal status in U.S., it is extremely important that an H-1B holder maintains H-1B nonimmigrant status rather than sitting on EAD status. There are two reasons for this: 

1) The I-140 denial or I-485 denial does not disqualify the applicant to re-file the case, if you are in a valid nonimmigrant status. Those who stay and work on EAD lose a legal status, as soon as I-140/I-485 is denied and becomes ineligible to file another petition. 

2) The denial of I-140 can be appealed, if you are in a valid nonimmigrant status. The H-1B holder is eligible for 7th year or indefinite extension of H-1B beyond the 6-year limit during the appealing process, until the final decision of the application.

The unauthorized employment period continues to accumulate and aggregate for the purpose of 245(k) eligibility. Section 245(k) of the Immigration and Nationality Act allows those nonimmigrant, who either violated the nonimmigrant status or engaged in unauthorized employment for a period of less than 180 days since their "last admission" to the United States, to file I-485 application despite their violation of nonimmigrant status.