My wife is using I-485 EAD for her job, and she has approved AP, and also has approved H4 petition until March,2026 (though visa on passport has expired) She plans to stamp her H4 in India. Can she choose to come back on H4 visa from India instead of AP, and then again start working using I485 EAD? Will this switch between AOS and H4 anyway adversely impact her/our I485 petition? Thanks
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AOS EAD travel on H4 stamp
- Thread starter SSD2428
- Start date
whitemimauz3
Registered Users (C)
Once you file I-485 you are not required to any maintain any other status. I am assuming you are maintaining H-1b status. In that case derivatives are entitled to H4 status. As long as you maintain H-1B they maintains H-4. There is an exception for H & L nonimmigrants to maintain H or L Status & also be applicant for adjustment of status (I-485 pending). I don't think it will affect in any if she switches back and forth.
She has already lost H4 status, by working in the US outside of an H4 EAD. But that is fine as she doesn't need to maintain a status to stay in the US with a pending I-485.
She can apply for an H4 visa abroad if she wishes. Her eligibility for an H4 visa and status is only based on being the spouse of someone in H1b status.
However, I see a problem with her entering on H4 visa instead of on AP. The regulations (8 CFR 245.2(a)(4)(ii)(A) to (C)) say that someone who leaves the US while an I-485 is pending automatically abandons that I-485, unless 1) they are granted an Advance Parole before they leave, and they are paroled back into the US (i.e. they enter on that AP), or 2) they maintained H1b/H4/L1/L2/K3/K4/V status until right before they left, and they re-enter the US on the same kind of visa. The problem is that she has not maintained H4 status until right before she left (since she worked outside H4), so #2 is not available. So #1 is the only option, and that requires her to enter on AP, not on an H4 visa.
She can apply for an H4 visa abroad if she wishes. Her eligibility for an H4 visa and status is only based on being the spouse of someone in H1b status.
However, I see a problem with her entering on H4 visa instead of on AP. The regulations (8 CFR 245.2(a)(4)(ii)(A) to (C)) say that someone who leaves the US while an I-485 is pending automatically abandons that I-485, unless 1) they are granted an Advance Parole before they leave, and they are paroled back into the US (i.e. they enter on that AP), or 2) they maintained H1b/H4/L1/L2/K3/K4/V status until right before they left, and they re-enter the US on the same kind of visa. The problem is that she has not maintained H4 status until right before she left (since she worked outside H4), so #2 is not available. So #1 is the only option, and that requires her to enter on AP, not on an H4 visa.
Thanks, but I will request opinion from other experts also on this please. I thought spouse maintaining H4 status is derived from the primary. I am working on H-IB, will that not be sufficient for my spouse to maintain her H4 status? Will really appreciate any opinion on this. My immigration coordinator in my office is saying my spouse can use either AP or H4, but before committing I will like to be sure.