Can H1B visa be stamped after filing of I-485 of spouse

L

lovely_bug

Registered Users (C)
My husband's I-485 should be filed in June 2007.I am currently on H1-B status.I have never got the H1 stamped.I would like to retain my valid H1 visa until we get our green card.Is it possible for me to get my H1 stamped from India despite having my name included in the I-485 filing OR is it advisable to enter the country on AP and start working with EAD.

Thanks
 
lovely_bug said:
My husband's I-485 should be filed in June 2007.I am currently on H1-B status.I have never got the H1 stamped.I would like to retain my valid H1 visa until we get our green card.Is it possible for me to get my H1 stamped from India despite having my name included in the I-485 filing OR is it advisable to enter the country on AP and start working with EAD.

Thanks
Click to expand...

Are you on h1-b status? did you mean you have h1-b approval but no stamp in passport?. clarify.

General rule: if one is on h1-b filing for I-485, absolutely doesn't mean person goes into adjustment of status. UNLESS & UNTIL you use EAD, you keep your h1-b status.

HTH.
 
Yes, I have an H1 approval issued on Dec 2, 2004. I haven't got it stamped as I did not step out of the US.
Thanks
 
Generally, it is advisable to continue on a valid visa. If on EAD and 485 or EAD renewal gets rejected for some reason, then it is an out of status and have to stop working.

It happened to my colleague's friend who was 'flagged' just because he unknowingly traveled on 9/11 morning from Newark, non-american, etc. FBI agents visited question him couple of times and he thought everything would be fine. But, now his EAD renewal was getting rejected and even court isn't helping it seems. He lost his job and fighting via legal channels. He doesn't have anything negative and his wife is an american, so he may get it cleared someday, but still have to go through it. This is just an example, but a rare case and shouldn't really be a concern for everyone.

Many people use EAD and change jobs since the risk factor is very low when everything is properly documented.


lovely_bug said:
Yes, I have an H1 approval issued on Dec 2, 2004. I haven't got it stamped as I did not step out of the US.
Thanks
Click to expand...
 
GCInThisLife said:
Generally, it is advisable to continue on a valid visa. If on EAD and 485 or EAD renewal gets rejected for some reason, then it is an out of status and have to stop working.

It happened to my colleague's friend who was 'flagged' just because he unknowingly traveled on 9/11 morning from Newark, non-american, etc. FBI agents visited question him couple of times and he thought everything would be fine. But, now his EAD renewal was getting rejected and even court isn't helping it seems. He lost his job and fighting via legal channels. He doesn't have anything negative and his wife is an american, so he may get it cleared someday, but still have to go through it. This is just an example, but a rare case and shouldn't really be a concern for everyone.

Many people use EAD and change jobs since the risk factor is very low when everything is properly documented.
Click to expand...


Thank you very much for the reply
 
Do you really want to go get an H1B stamp?

lovely_bug said:
Yes, I have an H1 approval issued on Dec 2, 2004. I haven't got it stamped as I did not step out of the US.
Thanks
Click to expand...

Although a pending 485 doesnt impact your ability to get an H1B stamp, my suggestion is that you get the AP document before traveling out of the country and forget about the H1-B stamping unless you like the experience of going to a US consulate abroad. Note that, if you do that, you can still continue to work under your H1-B status after reentering the US.
 
I am not sure if this is correct. If you enter the country using Advanced Parole, you might lose the H1B status but needs a separate petition to switch back to H1B

From Murthy's Q & A
http://www.murthy.com/chatlogs/chat1124_P.html
------------------
Only after travel abroad and reentering the U.S., a person has to choose to enter as a parolee or on H1B status, but, then, as stated above, one may revert to H1B status by filing an H1B extension even if one enters as a parolee, if one is still working for the same H1B employer.
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infostarved said:
Although a pending 485 doesnt impact your ability to get an H1B stamp, my suggestion is that you get the AP document before traveling out of the country and forget about the H1-B stamping unless you like the experience of going to a US consulate abroad. Note that, if you do that, you can still continue to work under your H1-B status after reentering the US.
Click to expand...
 
entering on AP but retaining H1B status

I specifically asked my lawyer about this question last week (entering on AP but retaining H1B status) and his reply was that, yes, it is possible, and that the USCIS had been clear that you could retain H1B status despite having entered the country on AP.

I read the link you posted and my best guess is that between the time of that chat (Nov 2003) and now, USCIS might have cleared the air a bit.

Again, I am not a lawyer... seeking legal opinion is probably advisable here

GCInThisLife said:
I am not sure if this is correct. If you enter the country using Advanced Parole, you might lose the H1B status but needs a separate petition to switch back to H1B

From Murthy's Q & A
http://www.murthy.com/chatlogs/chat1124_P.html
------------------
Only after travel abroad and reentering the U.S., a person has to choose to enter as a parolee or on H1B status, but, then, as stated above, one may revert to H1B status by filing an H1B extension even if one enters as a parolee, if one is still working for the same H1B employer.
----------------------
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