AOS/EAD Back to H4

[lex2004]

Both Husband and Wife have H1b visa. Suppose husband is the primary applicant for GC.

If husband uses EAD based on I-485, and I-485 later gets denied for whatever unforeseeable reason, can he switch back to H4 on his wife's H1b or does he have to leave USA?

Thanks

 

[TheRealCanadian]

If husband uses EAD based on I-485, and I-485 later gets denied for whatever unforeseeable reason, can he switch back to H4 on his wife's H1b or does he have to leave USA?

I think the simplest way would be to leave the US and re-enter. I doubt the Service Centers would approve an I-539 for someone who had not maintained non-immigrant status since using the EAD.

 

[lex2004]

Thanks!

 

[ginnu]

Both Husband and Wife have H1b visa. Suppose husband is the primary applicant for GC.

If husband uses EAD based on I-485, and I-485 later gets denied for whatever unforeseeable reason, can he switch back to H4 on his wife's H1b or does he have to leave USA?
-------------- He need to go out and he can get H4 visa stamp based on spouse H1 status and can enter on H4 status.
Thanks

 

[Manubilga]

Real canadian i am cadian citizan with eb3 my i140 approved whan i can file i485

 

[dyingforgc]

Once you use EAD to get back on non immigrant status :

a)if you already have valid h1-b/h4 stamped in the passport then simply go out of US and come back using the same. no issue.

b)If you already have h1-b/h4 I-797 valid but stamp in passport is expired and want to avoid going for stamping then go to Canada and use Auto-revalidation to enter back into USA showing unexpired I-797 along with attached I-94. No issue.

c)If h1-b/h4 is expired and you don't have any extented I-797 then you will have to apply for fresh h1-b/h4, which will be subject to h1-b quota of the year. In this case you will have to make sure you don't stay in the country more than 180 days otherwise you will be in trouble while going for visa stamping in consulate. In such cases you will have to go to your home country for visa stamping.

 

[TheRealCanadian]

If h1-b/h4 is expired and you don't have any extented I-797 then you will have to apply for fresh h1-b/h4, which will be subject to h1-b quota of the year.

This is incorrect. The only way to be subject to the cap for a fresh H-1, assuming your original H-1 was subject to the cap, would be to leave the United States for a year.

H-4s are never subject to the cap.

 

[dyingforgc]

This is incorrect. The only way to be subject to the cap for a fresh H-1, assuming your original H-1 was subject to the cap, would be to leave the United States for a year.

H-4s are never subject to the cap.

H4 is not subject to quota, which wasn't trying to convey.

If both h1 and h4 applicants use EAD then their non immigrant status is toast to AOS. Now if they want to convert back to h1/h4 but their h1/h4 is expired(no more valid I-797) then how can the primary appilcant (h1) be not subject to h1-b quota?

 

[TheRealCanadian]

Now if they want to convert back to h1/h4 but their h1/h4 is expired(no more valid I-797) then how can the primary appilcant (h1) be not subject to h1-b quota?

Being cap-exempt and the six-year clock go hand in hand. If you have not reset your six year clock by leaving the US, you are not subject to the cap, no matter what status you were holding in the interim.

 

[June1506]

RealCanadian,

Person I know married and entered US on H4 status. There was a job offer for her but had to wait till next year to get visa since there was no visa available. Are you saying that the wait was unnecessary and she was not subject to H1 cap?