AOS and spouse visa change from H1-h4

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nj2006ster

Registered Users (C)
Guys -

As per sept bulletin , I am eligible to file for 485 . My wife is currently working on H1 as a consultant . Her project is ending on Oct 31 . Now if i file for 485 by Sept 20 its very unlikely i will receive receipt by Oct 31 for us . if we change my wife status from H1 to H4 will it be a problem as in 485 application she is on H1 .

Please let me know your opinion . :confused:

Thanks,
NJ2006ster .
 
What are you worried about? You think you are not allowed to change from H-1 to H-4 after filing the I-485? You can change from H-1 to H-4 and back to H-1 again, or even L-1 to H-1, and still keep the I-485 going. The main thing is that you normally should be in legal status at the time of filing I-485; you are not obligated to keep the same type of status until the I-485 case is completed.
 
Thanks Jackolantern -

I am worried about this

1.Applying for COS for my wife i.e H-1 to H-4 ,will she has to leave country if H-4 is approved but no I-94 is attached . we are worried because she is pregnant and its not advisible her to travel .

2.do we really have to do COS when AOS is applied . how to tell USCIS that now she is no longer using her H-1 but wants to use EAD ?


Thanks,
Nj2006ster
 
nj2006ster said:
1.Applying for COS for my wife i.e H-1 to H-4 ,will she has to leave country if H-4 is approved but no I-94 is attached .
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No need to leave the country. Just keep the H-4 approval notice as proof of changed status. If she does choose to travel outside the US, the H-4 approval notice would have an I-94 stub on the lower corner which can be torn off and given to the airline agent when leaving the country.

2.do we really have to do COS when AOS is applied .
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No you don't. You can just file AOS and let the H-1/H-4 expire. But it helps to have a valid H-1 or H-4 status, because it allows you to travel outside the US and return without Advance Parole (but the H-1/H-4 visa stamp obtained at a consulate is required to re-enter the US without Advance Parole).

how to tell USCIS that now she is no longer using her H-1 but wants to use EAD ?
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No need to tell them. Just use it when getting a job (or extending your employment at your current job after the H status expires). The employer may inform them, or USCIS may take steps to find out on their own, but you don't personally have to tell USCIS that the EAD was used. However, once the EAD is used, the H-1/H-4 becomes invalid which would mean that Advance Parole would be required for re-entry after travel outside the US.
 
Hi Jackolantern,

You have mentioned that usage of EAD would make H1 invalid. Does using AP changes anything on H1?

My situation is that I have filed for I-485 and I am planning to go to my home country and get married and apply for my wife's H4 based on my current H1 which is valid till 2010 and travel back to US on AP. Once she gets her H4 then I would go back and bring her with me. My lawyer is off the view that once I use the AP it would create complications for her H4 and also in future she would not be able to file extention for H4.

Your valuable advice is most appreciated.

Thanks
Orange76

__________________
PD: Jan 2006 (EB3 rest of world)
LC AD: March 2006
I-140 AD: Aug 2006
FP: Sept 20, 2007
I-485 AD: July 02, 2007 NSC
EAD AD: July 02, 2007 . EAD Approved 9/28/2007
AP AD: July 02, 2007
 
Orange76 said:
Hi Jackolantern,

You have mentioned that usage of EAD would make H1 invalid. Does using AP changes anything on H1?
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The short answer is that it makes things complicated, as there are many ifs and buts involved. Why would you want to use AP if you have a valid H-1? Or is it that you don't have an H-1 stamp in your passport, and you want to avoid going to the consulate to get the stamping?
 
Last edited by a moderator:
Hi Jackolantern,

Yes, I want avoid to go thru the consulate as it might take a couple of months to get the Visa stamped.

Thanks
Orange76

__________________
PD: Jan 2006 (EB3 rest of world)
LC AD: March 2006
I-140 AD: Aug 2006
FP: Sept 20, 2007
I-485 AD: July 02, 2007 NSC
EAD AD: July 02, 2007 . EAD Approved 9/28/2007
AP AD: July 02, 2007
 
Using AP does not invalidate your H1 status, but using EAD for work does. If you have valid H1, you can enter with AP without getting the VISA stamp from the local consultates. After your return, if you continue to work with the same company who sponsors your H1, then it will not get invalidated.

I did the same in my past and continue to renew H1 / H4's.
 
Thanks nlssubbu for clarification,

I have another question. Once I bring my wife here on H-4 how soon I can add her to my I-485 and what steps are neccessary for to acheive that? My priority date is Jan 26, 2007 and currently the visa bulletin shows Aug 02 for ROW.

Thanks!
-Orange76

PD: Jan 2006 (EB3 rest of world)
LC AD: March 2006
I-140 AD: Aug 2006
FP: Sept 20, 2007
I-485 AD: July 02, 2007 NSC
EAD AD: July 02, 2007 . EAD Approved 9/28/2007
AP AD: July 02, 2007
 
Orange76 said:
Thanks nlssubbu for clarification,

I have another question. Once I bring my wife here on H-4 how soon I can add her to my I-485 and what steps are neccessary for to acheive that? My priority date is Jan 26, 2007 and currently the visa bulletin shows Aug 02 for ROW.
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In order to file I-485 for her, your PD must become current. And in order to keep her in valid H-4 status, you must stay in valid H-1 status.
 
Thanks Jackolantern,

I appreciate your response. Just to clarify this once for ever. Usage of AP does not invalidates H1-B. I found a USCIS memo on the following which states that same.

http://www.shusterman.com/hlmemo500.html

Can you please confirm that this is true that usage of AP does not makes H1-B invalid?

Thanks in advance for your response.

Regards
Orange76

-----------------------
PD: Jan 2006 (EB3 rest of world)
LC AD: March 2006
I-140 AD: Aug 2006
FP: Sept 20, 2007
I-485 AD: July 02, 2007 NSC
EAD AD: July 02, 2007 . EAD Approved 9/28/2007
AP AD: July 02, 2007
 
Orange76 said:
Thanks Jackolantern,

I appreciate your response. Just to clarify this once for ever. Usage of AP does not invalidates H1-B. I found a USCIS memo on the following which states that same.

http://www.shusterman.com/hlmemo500.html

Can you please confirm that this is true that usage of AP does not makes H1-B invalid?

Thanks in advance for your response.

Regards
Orange76

-----------------------
PD: Jan 2006 (EB3 rest of world)
LC AD: March 2006
I-140 AD: Aug 2006
FP: Sept 20, 2007
I-485 AD: July 02, 2007 NSC
EAD AD: July 02, 2007 . EAD Approved 9/28/2007
AP AD: July 02, 2007
Click to expand...


I traveled out of US and entered back thrice using AP along with my family members and continued to renew my H1 and my family's H4 after my return. (Twice for one year extension and once for 3 years extension). [I have a valid H1 till 2010 :D]

Thanks

PS: This is based on my personal experience and please consult with your attorney and act accordingly
 
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