Can I enter on AP, and spouse on H4 ?

K

kakashi

New Member
First, I'd like to sincerely wish everyone success in their processes. I wish we all can put the immigration process behind us and live happily.

Issue:
While my I-485 is pending and I'm still on H1B, I want to go home and get married, and bring spouse on H4

Current status:
AOS (I-485, I-131,I-765) filed Dec-01-2013
Received EAD/AP combo card. Finger printing done.
*I-485 pending*
H1B/I-94 till Sep-2015. *Expired* stamp from previous H1B

I now realize that if I get married after my I-485 approval, I'll have to wait through the F2A quota before spouse can come to US - which can be very lengthy (no movement last 4 months). Since I'm still H1-B status, so H4 route for spouse would be much faster.

Two complications:
I have AP combo card, but don't have a current H1B stamp (I-94/H1B approval is till Sep-2015)
I-485 might be adjudicated as soon as 1-2 months, and would lose H1B status then

I understand that ideal/simple case would be:
Fly home, get married
I apply for H1B stamp, spouse applies H4
Enter US on H1B/H4
File for spouse I-485 - and hope all this happens before my I-485 is adjudicated

I want to see if I can save time and avoid applying for H1B stamp (because H1B admin processing is unpredictable)

1.
Is the following possible?
I travel back soon, get married
Only spouse applies for H4 stamp - Is this even possible? Or would I need to apply for H1B stamp for myself, for spouse to get H4?
We fly back together
Spouse goes ahead in line and enters as H4. Then I enter on AP

2.
I believe if I enter on AP, my H1B would still remain intact, so spouse H4 should remain valid too.
Entering on AP causes secondary checking. But I'm guessing even if we are questioned, things should be okay. Is this correct? Or would there be any issues?

3.
Has anyone done that before? Can I try something else?

4.
Kindly provide feedback on these backup options:
If after marriage, my I-485 is approved before we can come back to US - I will return alone and use follow-to-join option (I-824).
Would that be the right thing to do?
Would it be faster than going through I-130/F2A

5.
If I apply for H1B stamp and spouse for H4, and if before the stamping, my I-485 is approved - there shouldn't be any issue when I return, right?

6.
What if spouse is able to enter on H4, but my I-485 get approved before we can file the 2nd I-485? Will spouse have to leave?

I would really appreciate your guidance and support. Thanks.


And my sincere best wishes to everyone!!
 
Your H1 status remains preserved until Sept 2015. Therefore, if your wife obtains H4 (for which a valid approval notice of your H1 is needed) she can enter on H4 and you on AP.
 
This is a gray area with several different opinions on the Internet and apparently no concrete ruling or regulation, so you should avoid the AP/H4 combination if you can. Apply for H1B stamping at the consulate, then use the AP as a backup if the stamping is delayed.

If you enter with AP, avoid bringing to the attention of the immigration officer at the port of entry the fact that you are entering on AP while she is using H4. In other words, separate yourselves in the immigration line and don't go to the same officer together. This is a situation with confusing rules, and you don't want her to be refused entry because of the officer's adverse understanding of the rules.

You ultimately will be processed separately anyway because you have to go secondary inspection when using AP, while she can get processed using the normal immigration counter.
 
I think there was discussion/guidelines about someone able to reinstate H-1B even after entering using AP as long as you are working for same employer. OP has valid concern of getting struck in administrative processing.
 
Guys,

Thanks for feedback, much appreciated!!

Other than getting stuck in admin processing for H1B, my main concern is during the time I'm waiting for H1B stamping, my I485 would be approved ....then H1B/H4 would be useless anyway

That's why I'm leaning towards AP/H4 option.

Could you help me understand the likely worst-case scenario with AP/H4? Meaning what's the worst that could happen if I try AP/H4? I'm hoping even if AP/H4 doesn't work out, I could still go with follow-to-join as fall back. Is this correct?

Any idea on follow-to-join time frame? It should be faster than I-130/F2A process, right?

Thanks again
 
Folks,

I've decided to be safe and just use the follow-to-join option :)

I want to thank everyone sincerely for all your help and thoughts.

Best wishes to all! I hope everyone gets their green card ASAP, resolves any other issues and leads a happy life!
 
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