Need Advice

[aksmks]

All Gurus,

I need your advice. This is a scenario for my cousin sister. She came to US on tourist visa got a job and her H1B visa. She has been working with a very big company for last 3 years. Not a single day on bench and W2's are accurate. Her labor Certificate got cleared few weeks back. Her fiance is in India. My question is how can she get her fiance here. Her H1B visa is not stamped in her passport. Also if she applies for I-140, AP, I-485 and then goto India on Advance Parole and get married. Bring her fiance back on H4. Then can she add his name on I-485 later?

Please give your valubale feedback and suggestions

aksmks

 

[mgh2001]

Best to get married, get spouse here on H-4 and then apply for I-140/I-485 with both names on I-485. Getting H-1 stamped in India for the first time should be no big deal, if all papers are in order.

If the person has filed I-485, and gets married after that then spouse can be sponsored under follow to join benefits, but thats a more cumbersome process.

If the I-485 gets approved, and the marriage occurs afterwards, the waiting time is horrendous.

 

[aksmks]

mgh2001,

Thanks a lot for your reply. We are thinking of applying for I485/I140/AP together and then go to India once she gets her Advance Parole. Get married there and try to get H4 stamped for her spouse, come back to US and then add the spouse name in I-485, as we are sure it won't get approved in another 2 years.

Please do let me know if you have any other ideas

thanks
aksmks

 

[mgh2001]

Dude,

You need to get the timing right. One cannot file I485/AP together with spouse until one gets married. So the sequence goes as follows:

1. Get married
2. Apply and get spouse here on H-4
3. Together apply for I140/485/EAD/AP.

If the H-1 is valid for a long enough time you dont even need the AP to travel (i.e., you can travel on H-1 visa)

Another scenario.
1. Apply for I140/485/EAD/AP alone
2. Get married
3. Get spouse here on H-4
4. Get spouse added to I-485

Also if one travels on Advance Parole, one cannot get the spouse back on H-4 ( one needs to be in H-1 status for spouse to get H-4). Once a person enters the U.S on AP, he/she is deemed to be in I-485 adjustment status.

 

[aksmks]

mgh2001,

Thanks for your advice. So if she travels on Advance Parole her visa is cancelled. If yes then scenario one is much better. But if her visa is still valid then why can't she bring the spouse on H4.

Thanks and regards
aksmks

 

[mgh2001]

Realized there was an error in the previous post. Your sister's husband can be added to the I-485 either a) directly if he's in the U.S or b) under follow to join if outside the U.S. A bit more cumbersome than filing it together, but no big deal. Key is to make sure I-485 does not get APPROVED before marriage.

Status is based not on whether a person has an AP or not (if a person already has valid H1), but rather what was used for entry purposes. Once a person has a valid H-1 as well as an AP, the person can re-enter the U.S using either. Usually entering on H-1 is recommended (if the visa is valid) as it saves one the trouble of going through secondary inspection. However, whatever status the person enters into the U.S, thats the status the person gets moving forward. If a person enters on AP, he/she needs to have an EAD to continue working, even if the H-1 is still in its validity period.

I believe (not 100% sure) most consulates in India will require the H-1 holder to have an H-1 stamp or get one prior to issuing the spouse an H-4 stamp. Say your sister applies for (and gets) AP, goes back to India, gets married, gets her husband an H-4 without getting an H-1 visa stamp herself ( again, dont know if this is even possible), she cannot enter the U.S as an AP and her husband as an H-4. H1/H4 go together. If H-1 status is invalidated for any reason, H4 also gets invalidated since it is a derivative benefit. If she enters the U.S on AP, her husband will also need to enter on AP ( but he cant get it since the marriage wouldnt have occured when your sister applies for it)

Also, if the husband can get a H4, theres no reason your sister cannot get an H-1 stamp. One can have applied for I-485 and still get an H-1 stamp ( H-1 is dual intent)

 

[mgh2001]

Realized the previous post was a bit confusing. In summary, given current I-485 processing times, theres really no risk to I-485 getting approved quickly, either option would work.

With Option(1), advantage is both your sister & husband would get EAD together, downside is some delay in filing

With Option (2), husband's name has to be added later resulting in delays in getting EAD and thus opportunities for working here. H-4 holders cannot work (even getting SSN might be difficult), until the EAD comes through.