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AOS to H-4
- Thread starter kesab
- Start date
As long as the I-485 is pending, the spouse is OK on the DT status (which means Advance Parolee). The benefit is that the spouse/dependant can apply for EAD and start to work. The flip side is that one needs an unexpired advance parole to travel outside the country and come back in.
On the other hand an H-4 will allow the spouse/dependant to obtain an H-4 visa while abroad and entry and exit should be painless when that happens. The flip side is the spouse cannot work.
The motivation to go with either remaining as a DT or convert status to H-4 is subject to the applicant's choice, justification and economic factor.
EAD's and APs will cost extra (both in time and effort) for renewal each year. H-1's and H-4 can be renewed for up to three years in one shot depending on the status of the I-140.
I would consult a lawyer on the exact pros and cons since each case can be different.
Hope that helps --
On the other hand an H-4 will allow the spouse/dependant to obtain an H-4 visa while abroad and entry and exit should be painless when that happens. The flip side is the spouse cannot work.
The motivation to go with either remaining as a DT or convert status to H-4 is subject to the applicant's choice, justification and economic factor.
EAD's and APs will cost extra (both in time and effort) for renewal each year. H-1's and H-4 can be renewed for up to three years in one shot depending on the status of the I-140.
I would consult a lawyer on the exact pros and cons since each case can be different.
Hope that helps --
kesab,
As long as the principal applicant is on a "continously valid" H-1, the dependant can get the status converted from AOS to H4 with a simple "change of status" application. The H-4 is is granted for the same time period that the principal applicant's H1 I-797 is valid till. The key is that the spouse cannot be working or should not have used the EAD. The change of status application will specifically ask for that information.
The USCIS may issue an RFE asking for clarification (it happened in my case), but it can be easily responded to by the lawyer.
In my case USCIS did change status of my wife to from Advance Parole (DT) to H-4 with an expiry date that matched my I-797 and issued a new I-94 with the same number as the Advance Parole I-94, but with the status changed to H-4 and date of expiry that matched my I-797.
Hope that helps --
As long as the principal applicant is on a "continously valid" H-1, the dependant can get the status converted from AOS to H4 with a simple "change of status" application. The H-4 is is granted for the same time period that the principal applicant's H1 I-797 is valid till. The key is that the spouse cannot be working or should not have used the EAD. The change of status application will specifically ask for that information.
The USCIS may issue an RFE asking for clarification (it happened in my case), but it can be easily responded to by the lawyer.
In my case USCIS did change status of my wife to from Advance Parole (DT) to H-4 with an expiry date that matched my I-797 and issued a new I-94 with the same number as the Advance Parole I-94, but with the status changed to H-4 and date of expiry that matched my I-797.
Hope that helps --
jamesmehta
Registered Users (C)
thanks Hariya, ur reply helps.
In other words, a spouse who has used/using EAD cannot do a COS back to H4? Is this correct? Thanks for providing the information.
Hariya said:kesab,
As long as the principal applicant is on a "continously valid" H-1, the dependant can get the status converted from AOS to H4 with a simple "change of status" application. The H-4 is is granted for the same time period that the principal applicant's H1 I-797 is valid till. The key is that the spouse cannot be working or should not have used the EAD. The change of status application will specifically ask for that information.
The USCIS may issue an RFE asking for clarification (it happened in my case), but it can be easily responded to by the lawyer.
In my case USCIS did change status of my wife to from Advance Parole (DT) to H-4 with an expiry date that matched my I-797 and issued a new I-94 with the same number as the Advance Parole I-94, but with the status changed to H-4 and date of expiry that matched my I-797.
Hope that helps --
a spouse who has used/using EAD cannot do a COS back to H4
Not sure if that is true, but it is difficult to convince/prove that the spouse is not continuing to use EAD even after H-4 (which would be a direct violation of the H-4 status). IMO, it would be decided on a case by case basis and from what I have learned from discussing my own case with my lawyer, the USCIS adjuticating officer has considerable leeway in approving/rejecting cases based on specific circumstances.
Cases with straightforward "no EAD use" and "no break in principal's H-1" are usually granted, but cases where either may have occurred, the USCIS may choose to decline change of status, based on individual case history and/or adjudicating officer's perspective on that.
On the other hand IMO, there should be nothing to stop one from renewing/obtaining the EAD after the H-4 extension and start using it.
Again, a lawyer would provide better information since mine is yearned specifically from pursuing my own case (different circumstance).
Hope that helps --
Thanks for your response, Hariya.
Hariya said:Not sure if that is true, but it is difficult to convince/prove that the spouse is not continuing to use EAD even after H-4 (which would be a direct violation of the H-4 status)...