485 pending, H4 uses EAD, Does it affect spouse's H1 status?

X

xingfucun

Registered Users (C)
Hi, I have questions, hope to have guru's opinion. We have 485 pending, one is H1 status, the other is H4. If the H4 starts to work using EAD, then

1. H4 will not have H4 anymore, the status will be 485 pending?
2. After H4 start working using EAD, could apply H1?
3. How does this affect spouse's H1?
 
Hi, I have questions, hope to have guru's opinion. We have 485 pending, one is H1 status, the other is H4. If the H4 starts to work using EAD, then

1. H4 will not have H4 anymore, the status will be 485 pending?
YES

2. After H4 start working using EAD, could apply H1?
YES

3. How does this affect spouse's H1?
HAS NO EFFECT ON SPOUSE'S H1.

As an added note, if the principal applicant for I-485 used EAD, then the principal and dependents will no longer be in H status. They will then need EAD/AP.
 
Hi, Xingfucun,

Actually, I have this question for a long time. We are in I-485 pending. I am holding H-1 and my wife is holding H-4. Both of us has valid EAD from the beginning of 2002.

I don't use EAD, but my wife is using her EAD. I am still using my H-1. During this period, I renewed my H-1 twice and my family renewed their H-4 twice. My wife and I also renew her EDA once, and her 3rd EDA was submitted one month ago.

I understand that there should be no effect on the status of H-4 and H-1 if H4 uses EAD to work. Under such situation, EAD is just a work permission for H-4, since actually H-4 can not work without I-485 pending status. In case the 1-485 of principal applicant is denied, H-1 can be still H-1 if he/she doesn't use EAD or AP, and H-4 can still be H-4, but needs to give up the job immediately. That is my understanding. And I think it is reasonable.

I don't know there law source. Hopefully some expert can input a few words to clarify it.

James_Dick
 
James_Dick

Actually, I have this question for a long time. We are in I-485 pending. I am holding H-1 and my wife is holding H-4. Both of us has valid EAD from the beginning of 2002.

I don't use EAD, but my wife is using her EAD. I am still using my H-1. During this period, I renewed my H-1 twice and my family renewed their H-4 twice. My wife and I also renew her EDA once, and her 3rd EDA was submitted one month ago. by the word "renew" what do you exact mean? did you file new h4 or filed h4 extension? Incase you filed h4 extension then i am afraid you (actually your wife) might have serious issue in the future particularly during the i485 interview or surely during citizenship. because when your wife started using EAD she is NO LONGER in H4. so in that case how can you file h4 extension. due to the lack of proper system with bcis/uscis they have not checked properly. you dont have to worry about you or your dependent status as you are adjustment of status pending. the issue here is misreprention or document fraud because you filed for h4 extension when your wife is no longer in h4 because she has started using ead. i am not sure how far this will lead you to. better consult with some attorney. eventhough its the bcis/uscis mistake also to issue h4 extension approval they will turn to you later. i have seen lot of cases where wife of h1 filed h4-to-h1 (change of status) and got approved and never started working for that company because of unavailability of project and they had serious issues during i485 interview. remember that if change of status is also approved you are no longer in h4 thats the key

I understand that there should be no effect on the status of H-4 and H-1 if H4 uses EAD to work. if h4 uses EAD to work husbands h1 status will not be affected in anywayUnder such situation, EAD is just a work permission for H-4 there is no such thing , since actually H-4 can not work without I-485 pending status. In case the 1-485 of principal applicant is denied, H-1 can be still H-1 if he/she doesn't use EAD or AP, and H-4 can still be H-4 NOT applicable when h4 started using ead and is no longer h4, but needs to give up the job immediately YES and file h4 immediately or go out of usa and enter again using h4 visa if valid . That is my understanding. And I think it is reasonable.

I don't know there law source. Hopefully some expert can input a few words to clarify it.
 
Thank you for your message, Saigc.

I know there is confusion between H-1 visa and EAD when an I-485 petitioner uses his EAD. But EAD of AOS is just employement authorization for the I-485 petitioner whose application has not yet been approved. My wife did extend her H-4 because I renewed my H-1 visa. Usaully "renew" equals to "extend".

For H-1 holder, if you want to keep H-1 status, you cannot use your EAD. If you use your EAD, you will not use your H-1 and the H-1 will be automatically lost. Because H-1 is a temporatory working permit for the beneficiary to work for the petitioner, a non-immigrant work permit. If you don't use it, H-1 will be voided. Remember one can not keep two type of work permit. But for H-1 whose I-485 is pending, actually there is dual status, non-immigrant and immigrant.

For the spouse of H-1 (H-4 holder), you can not work by H-4, but you can work if you get EAD due to I-485 pending. It is not contrary for me. If you can not use your EAD, just stop using it. Your H-4 is still there, because the principle applicant (your spouse) of I-485 is still keeping H-1 status. Because during this period, H-4 holder doesn't have two type work permit. I think there are some difference between H-4 and H-1 when they use their EAD during the I-485 pending period.

Saigc, I am not sure if you are a lawyer. If yes, just tell me you know the legal source. Here, I think, we need to know how the immigration law regulate such matter. Where is the legal source of "If one H-4 started to use EAD, s/he will no longer be in H-4"? There is a example, the spouse of J-1 (exchange scholar) can apply for EAD and use this EAD to work. S/He is still in J-2 status if J-1 is still valid. If his/her EAD is rejected, s/he just need to stop working.

The above are my understanding about this kind matter, professional advices are appreciated.

James_Dick
 
Re: Saigc

i have seen lot of cases where wife of h1 filed h4-to-h1 (change of status) and got approved and never started working for that company because of unavailability of project and they had serious issues during i485 interview. remember that if change of status is also approved you are no longer in h4 thats the key
Click to expand...

Saigc, that is different issue. Because you changed from H-4 to H-1, you lost your H-4 certainly. But you don't use your H-1, and then H-1 is automatically voided, so you are out of status. But for H-4 whose AOS is still pending, there should be no problem, you have dual legal status, nonimmgrant (H-4) and immigrant (AOS pending), only one type of work permision. Remember, EAD has never be an immigration status, just a work permit.

That is just my understanding. Legal clarifications are appreciated.

James_Dick
 
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