Adding husband who stays in India, to wife's ongoing GC process

G

gupman

New Member
Here is a situation quite different from the usual one :confused:

Wife processing GC. I-485 done in 2011. Advanced Parole taken. Waiting for fingerprint
How do we add husband's name to wife's GC process?

Husband is in India since 2004. He entered US for first time on H1 in 1999, returned to India in 2004, came for a visit to US on B1 during 2005. Wife entered US on H4 along with husband's H1 in 1999, then converted to H1 in 2004 and then started GC process later.

They are married since 1995 and there is a child born in US during 2001
 
Is it an employment based case? Does the wife have still H1B status? Having Advance Parole does not automatically invalidate the H1B.
 
Rephrased question - adding spouse to GC process

Let me rephrase the question. Husband (H1) & wife (H4) were in US till 2003, then decided to separate (but did not divorce) and husband moved to India. Wife remained in US, got an H1 and started working. She filed I-140, got EAD and is going through AOS. At present, her fingerprinting is done and she has taken AP.

Meanwhile, wife & husband decided to reunite and husband wants to return to US. So there are a few queries
- can wife file for husband's EAD as soon as he enters US?
- is long term separation and absence from US going to be an issue in getting EAD for husband?
- Should husband enter US on B1 and H4, in order to get EAD filed?
- If wife can't file EAD, should husband try for H1 in order to work, when quota opens next year?
 
You haven't clarified whether the wife's H1B is still valid. Having that H1B is needed for her husband to get an H4.

If he enters with H4, he can file the I-485 as soon as he has the results for the medical. But if he enters with a B1/B2 visa, attempting to adjust status could be problematic because of immigrant intent. Spouses of US citizens who enter with B1/B2 are usually given leniency for this, but neither of them is a US citizen nor even a permanent resident, yet so they cannot expect leniency if he enters the US with a B1/B2.
 
Jackolantern said:
You haven't clarified whether the wife's H1B is still valid. Having that H1B is needed for her husband to get an H4.

If he enters with H4, he can file the I-485 as soon as he has the results for the medical. But if he enters with a B1/B2 visa, attempting to adjust status could be problematic because of immigrant intent. Spouses of US citizens who enter with B1/B2 are usually given leniency for this, but neither of them is a US citizen nor even a permanent resident, yet so they cannot expect leniency if he enters the US with a B1/B2.
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Wife visited India in end 2011 and re-entered US via AP route. So I presume H1 is invalid now.

Thanks for the response. Entering on B1/B2 could be an issue due to immigrant intent. Can they be lenient if there is a US citizen 10 year child living in US with them after he enters on B1 and then files for AOS?

Side question - Husband has 10 year B1 stamped in 2005 when he worked for a US headquartered company. He has left it in 2007. Can he still use that B1 to enter? Else, I guess he will have to get a visitor visa stamped.
 
gupman said:
Entering on B1/B2 could be an issue due to immigrant intent. Can they be lenient if there is a US citizen 10 year child living in US with them after he enters on B1 and then files for AOS?
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The law is the law. As a practical matter the spouse and child would likely come up at the POE, and he is likely to be either sent back to India or (worse) caught in a lie and barred permanently. Just isn't worth it.

I would have the wife re-enter the US on an H-1 (assuming the original petition hasn't expired) and have hubby come on the H-4.
 
TheRealCanadian said:
The law is the law. As a practical matter the spouse and child would likely come up at the POE, and he is likely to be either sent back to India or (worse) caught in a lie and barred permanently. Just isn't worth it.

I would have the wife re-enter the US on an H-1 (assuming the original petition hasn't expired) and have hubby come on the H-4.
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Why do you say that hubby will be sent back or barred? I am little confused which of my questions you responded to

And my side question above is that hubby got a 10 year B1 in 2005 on behalf of his company and he has left that company already. I thought he can enter on that B1 since B1 is independent of company. Please clarify.

To summarize, here is what I understood
- he can enter on H4 if wife reenters on H1
- he can enter on F1 by applying to a course
- he can perhaps enter on B1 that he got in 2005
- he can apply for fresh B1 as a tourist visitor
- he cannot get an H1 right now since new H1 will reopen in April
- after he enters US, he can file AOS based on wife's EAD
 
gupman said:
Why do you say that hubby will be sent back or barred?
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Because he doesn't intend to return to his home country, he is likely to be sent back. If he lies and gets caught, he will get barred.

I thought he can enter on that B1 since B1 is independent of company. Please clarify.
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The B1 is valid, but unless he can demonstrate clear ties to his home country and the temporary nature of his visit, he doesn't qualify to enter in B status. The requirements for B status don't stop when the visa is issued.

- he can enter on H4 if wife reenters on H1
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Yes.

- he can enter on F1 by applying to a course
- he can perhaps enter on B1 that he got in 2005
- he can apply for fresh B1 as a tourist visitor
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None of the above; he can't prove the ties to his home country. Especially not having a spouse and child in the US seeking permanent residence!

- he cannot get an H1 right now since new H1 will reopen in April
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Yes. And that won't get him back to the US until next October at the earliest. Why don't you go visit him and get your H restamped? Much easier.

- after he enters US, he can file AOS based on wife's EAD
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He can file AOS based on the wife's approved and current I-140. Her EAD is irrelevant.
 
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