AP or H-4: Any thoughts??

A

an_anonymous

Registered Users (C)
Need your suggestions/thoughts:

Current status: H1 (Self), spouse is on H-4.
Applied for concurrent filing alongwith EAD and AP.

My current H1 (6 Yr limit) will expire Oct 1, 2004. I will apply for extensions during May/June 2004 for my H1 as well as H4 for my wife.

But in the meanwhile (before we file for H-extensions), if we both get EADs and my wife starts using it for a job (Please note that I will continue to be on H1 itself with the same employer who is sponsoring us), here are my concerns:

1. What is my spouse's status.
2. Can I still apply for my wife's H-4 extension (she has begun to use her EAD).
3. If we need to go out of country, how (in what statuses) do we come back??

Appreciate any responses.

Cheers,
anonymous
 
Applied for concurrent filing along with EAD and AP.

My current H1 (6 Yr limit) will expire Oct 1, 2004. I will apply for extensions during May/June 2004 for my H1 as well as H4 for my wife.
----- Good, you should apply H1 and H4 of your spouse and maintain the H1 status till the date I-140 is not approved and I-485 hits 180 days
But in the meanwhile (before we file for H-extensions), if we both get EADs and my wife starts using it for a job (Please note that I will continue to be on H1 itself with the same employer who is sponsoring us), here are my concerns:

1. What is my spouse's status?
---- If she used EAD she will not be on H4 status, she will need AP to renter if she again wants to be on H4 then she can go out of US get H4 visa stamp and enter US on H4 status. If she has valid H4 stamped she can again be on H4 status just exist US and enter on H4 status
2. Can I still apply for my wife's H-4 extension (she has begun to use her EAD).
--- YES you can file her H4 extension if she stops the use of EAD.
3. If we need to go out of country, how (in what statuses) do we come back??
------- If you have H1b and are maintaining H1b you can enter on H1b valid visa stamp OR AP, Your wife has to use AP or she can enter on H4 status if she has H4 valid visa or gets H4 visa stamp based on your H1B status.

*** I don’t know when your I-140 I-485 was filed, if I-140 is not approved it is better to be on H1 and spouse on H4 till I-140 is not approved because if I-140 is denied then EAD, AP I-485 for both of you will be denied.
 
Ginnu,

Thanks for your insights. Our concurrent filing was done in the first week of Dec 2003.

Since the approx processing times for I-140 is about 270 to 300 days, and EAD (might be) is 90 days away, we would like to use EAD for my spouse. I would like to continue with my H1 itself.

We are looking at March 2004 for our EADs to arrive. If by that time, we have still not filed our H extensions and my wife has started to use EAD, can I still jus file her H4 extension alongwith my H1 extension. Only I will get my H1 extension stamped on my passport. Is this doable??

This approach is just a backup (in the worst case scenario that something goes wrong with our I-140, we would still have the approval papers for my wife and as you suggested we can make a trip to India and get her H4 stamped in her passport and return on H visas).

Any thoughts...

Thanks in advance,

Happy Holidays and a Happy New Year!!!

Cheers,
anonymous
 
Since the approx processing times for I-140 is about 270 to 300 days, and EAD (might be) is 90 days away, we would like to use EAD for my spouse. I would like to continue with my H1 itself.

We are looking at March 2004 for our EADs to arrive. If by that time, we have still not filed our H extensions and my wife has started to use EAD, can I still jus file her H4 extension along with my H1 extension. Only I will get my H1 extension stamped on my passport. Is this doable??
----- If I am in your situation I will file H1 and H4 extension the reason behind this is that your wife can also get H4 visa stamped in her passport from DOS and will have the option to be on H4 by entering any time on H4 visa stamp if she wants to be on H4. I would not allow my spouse to use EAD till the date I don’t get my I-140 approved. If I-140 denied then EAD, AP, I-485 all will be denied and what will be her status? If after I-485 denial she goes for Visa stamp from consulate in India particularly Chennai then they create problems (not because I-140 or I-485 denied) just they need truck load of documents from primary H1 holder.now Bombay also started same kind of problems for H1 and H4 visa stamp

------- Second option: file her H4 extension when she gets H4 approval let her get H4 visa stamp from DOS in US and then she uses EAD, it means she will have H4 visa stamp in her passport, she can go to India, Mexico or Canada and can reenter on H4 status without problems.

This approach is just a backup (in the worst case scenario that something goes wrong with our I-140, we would still have the approval papers for my wife and as you suggested we can make a trip to India and get her H4 stamped in her passport and return on H visas).

---- I have explained what I will do rest is up to you to decide. I would not use EAD if I am on H1 and will get my H1 extension filed 5-6 months advance of H1, H4 expiry date. I would not allow my spouse to use EAD till the date my I-140 is not approved I will play safe and will maintain H1 and H4 status. Many maintain H1 till the date I-485 is not approved they go for 7th year H1 extension to be safe.
Read the link below:
http://www.murthy.com/ukdenial.html

Happy Holidays and a Happy New Year!!!
 
Last edited by a moderator:
Ginnu,

I have my and my wife's EAD with me, if she will use her EAD to get SSN for her, then, is that means, she used her EAD and no longer maintaining H4 status..?

As usual, appreciate your any comments on this.


Thanks,
 
I have my and my wife's EAD with me, if she will use her EAD to get SSN for her, then, is that means, she used her EAD and no longer maintaining H4 status..?
---- if she uses EAD to get SSN then she is on H4 status. If she uses EAD for work then she is not on H4 status. Let her go to SSN office and get SSN# no problem for her H4 status
 
Ginnu,

Thanks for the reply. I have one more question on my AP (advance Parole) which I got last week. When I was going through the document found the below notice, which made me confused...In fact, I did not understand the whole text. Here is the text which I found in the document as Notice..

1. Presentation of this authorization will permit you to resume your application for adjustment of status upon your return to United States, If otherwise admissible under Act.

2. If your adjustment application is denied, you may be subject to removal proceedings under sections 235(b)(1) or 240 of the Act.

3. If after April 1, 1997, you depart the United States after you were unlawfully present in the United States for more than 180 days before applying for adjustments of status, you may be found inadmissible under section 212(a)(9)(B)(i) of the Act and may not be permitted to enter when you return to the United States to resume the processing of your application. If found inadmissible, you will need to apply and qualify for a waiver of inadmissibility outside of the united states in order for your adjustment of status application to be approved.

Please help me to understand these 3 statements. I will be using this AP in my trip to India on end of Jan04.

Thanks again.
 
Originally posted by givemeLC
1. Presentation of this authorization will permit you to resume your application for adjustment of status upon your return to United States, If otherwise admissible under Act.
Click to expand...

Unless you've done something that would make you inadmissible (conviction of a criminal act, communicable disease), AP allows you to re-enter the US.

2. If your adjustment application is denied, you may be subject to removal proceedings under sections 235(b)(1) or 240 of the Act.
Click to expand...

If you enter using AP and the underlying adjustment application gets denied at a later date, you will need to leave the US. If you choose not to, you can be deported.

3. If after April 1, 1997, you depart the United States after you were unlawfully present in the United States for more than 180 days before applying for adjustments of status, you may be found inadmissible under section 212(a)(9)(B)(i) of the Act and may not be permitted to enter when you return to the United States to resume the processing of your application. If found inadmissible, you will need to apply and qualify for a waiver of inadmissibility outside of the united states in order for your adjustment of status application to be approved.
Click to expand...

If you are subject to the 3/10 year re-entry bars, AP will not help you, and you will be denied entry. Unless you've been illegally present (overstayed an I-94) for more than 180 days, this doesn't apply to you.
 
love2002,

I filed 485, EAD and AP on Nov 6th 2003 at Nebraska service center. Got my EAD 2 weeks back and AP last week.

Thanks.
 
TheRealCanadian,

As per point 2.

You mean to say, its better not to use AP, if someone has a valid H1B to enter US. What if someone does not have..? What I mean by that, his/her 6 years completed or Visa stamped on the Passport expired etc..

Thanks.
 
Originally posted by givemeLC
[BYou mean to say, its better not to use AP, if someone has a valid H1B to enter US.[/B]
Click to expand...

I said no such thing. All #2 says is that AP allows you into the country as a parolee until your adjustment is ajudicated. Once the adjustment is ajudicated, you are either a permanent resident, or it is denied. If it's denied, the basis for you being here (the pending AOS) no longer exists, therefore you must leave or be deported.

If you enter using an H, your basis for being here is the employment relationship with your employer as outlined in the H-1b petition. If your adjustment should get denied, then you can still stay in the US until the H expires (unless your AOS was denied for reasons like criminal inadmissibility or fraud, in which case you probably cannot stay on an H either).

In most cases, the adjustment is straight-forward, and I wouldn't worry too much about it being denied. The H is more practical in some cases since it's valid longer, but in other ways it's not since you may need a visa stamp and face more difficult questions at the POE.

Either way, I wouldn't sweat the "subject to deportation" language. That's pretty much boilerplate.
 
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