Can my wife enter US on H4 when she is on EAD?

S

sshah1001

Registered Users (C)
Hi Guys,

My wife is India and went on Advance Parole. AP expired in DEC when she was still there as she could not return back due to medical reasons. Now, I am waiting for her second adv.parole. But lawyers say that she would not be able to come to US on AP as she was not in US when her new AP got approved.

So, now I am thinking of some other ways to bring her such as on H4. But, there is a problem. My H1 visa got expired in Oct'03 and then I got extention (I-797) which I have currently sent for revalidation. So, I do not have original I-797 with me.

So, I am thinking of withdrawing my H1 revalidation application so as to receive it back, which I can send to my wife for applying H4 visa.

My questions are...

1. If I do not have my H1 visa stamped yet, can she apply for H4? I do have I-797 documents (xerox copy).

2. Suppose, if I do not send original I-797 and send xerox copy, will US embessy in India accept it?

Pl. advise ASAP.

Thanks in Adv.
 
Lawyers keep giving wrong advice- may be they are just over cautious.
Anyway to answer your Qs
1. yes she can. She needs original though.
 
Hi Jaxen2,

Thanks for your reply to my thread.

That means I have to recall my H1 revalidation application. In that case, do they send everything (passpoart, original I-797) back?

How many days they take?

Thanks in Adv.
 
Dont believe she will need the original I-797. Here's the document list from the U.S consulate in Chennai for H-4. If she has an existing H-4 stamp that might make things easier. Also, note that once she re-enters the U.S on H-4, she is on H-4 status and ineligible to work (may need to reapply for EAD, or leave and re-enter on AP - check with lawyers on this)

--------------------------------------
Applicants for the related dependent visas, H-4 and L-2 visas, should submit:


all the required documents for any non-immigrant visa Plus

Your marriage registration certificate, and an original birth certificate for each child.

Your wedding invitation and wedding ceremony photos. Please submit no more than 30 photos. Please do not send entire wedding albums.

All 36 pages of the principal applicant's passport (if not applying with principal applicant). If a copy of the passport is submitted, it should be a GOOD copy and the photo must be clearly identifiable.

A letter from the spouse's employer confirming continued employment.

Copy of the principal applicant's I-797, I-129 and Labor Condition Application (LCA)

Copy of the principal applicant's work experience letters

Copy of the principal applicant's letter of offer from the US company

If your spouse is currently working in the US on an H1-B visa, please submit the pay slips for the current calendar year and federal tax returns (IRS Form 1040 and W-2s) for all the years in which he/she has been employed in the U.S. on the H-1B visa.
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Hi mgh2001,

My wife is going to apply H4 from Mumbai. Their website visa-services.com stats that original I-797 is required.

Could you please check this website if you have time and confirm this?

Thanks,
 
Guess you're right. The Mumbai consulate has different requirements.

Also note that the consulate requires a photocopy of the principal applicant's valid H1B/L1 visa - so you may be better off waiting to get your visa revalidatation completed here and then send over the docs to your wife in India.
 
Hi mgh2001,
How can the requirements be different for US H4 visa in different centers?
My friend's wife came recently from Mumbai on just I-797 document.
I sent my revalidation on 22nd Dec and rcpt date at S.louis is 24th Dec. So, I think I have a long way to go.
I am really confused as to what to do to bring my wife back.
Thanks anyway.
 
Its pretty wierd that each consulate has different requirements, but this information is coming directly from their web site. An alternate which cannot hurt, is to take the photocopy along with all other docs to the Mumbai consulate, and see if they will issue the H-4 visa. They might do it, especially if theres an existing H-4 stamp. If they say no, she can explain the situation (that your visa is being revalidated here) and always take the original a month or so later. Good luck..
 
Hi mgh2001,
I have finally decided to withdraw my H1 revalidation application and receive original I-797 back. I will then send it to India along with other documents and let her try. If they ask for my H1-b stamping on my passport then I will go personally to India for about 2 weeks and get my H1-B stamping and her H4 done there.

My H1-b expired in Oct'03. So, I guess I have time till Oct'04 to apply for re-validation.

How does this idea sound to you?

Thanks,
 
Your plan should work, although I still think she should try with a photocopy of the I-797. Since the consulate asks for a copy of the principal H-1 holders visa as well as the original I-797, getting denied for one of those items missing is probably as likely as both of those missing - so might as well give it a try with a photocopy and all the associated H-1 petition paperwork. If that fails you could withdraw your application and make a trip to India. Either of your plans should work as well.

Sorry to hear about all this mess and confusion just for paperwork. Hopefully you can get your GC soon and avoid all these hassles.

Just remember that once you re-enter the U.S on H-1 and your wife on H-4, you both are on H status (your wife cannot work using her EAD, since her status in the U.s would be that of a H-4 dependent).
 
Hi mgh2001,

My company just warned me that US consulate in Mumbai may not grant my wife H4 visa as she used her EAD and worked here in US.

But, my lawyer says that theoratically, my wife can get new H4 visa even if she has used her EAD.

My wife had valid H4 visa when she went to India in Sep'03 even though she had an EAD. Her visa expired on 10th Oct while she was still there.

Could you please give your openion/advise on this?

Thanks,
 
There's no reason why the Mumbai consulate should not issue the H-4 regardless of whether she has worked on EAD or not. For instance, people routinely get H-1 visas stamped and continue to work on H-1 even when they are on status adjustment, to avoid the whole AP headache when travelling.

The only issue you need to be careful is that once she enters the U.S on H-4, and gets an I-94 which indicates H-4 status, she cannot work here on that status.
 
Hi mgh2001,

Thanks a lot for clarifications.

Actually, she may not want to work once she comes. Also, she has her EAD in waiting. So, may be if she wants, she can work once he applied EAD comes.

Thanks again!
 
Hi mgh2001,

Suppose, if she gets H4 in spite the fact that she worked on EAD before, will she be allowed to enter into US?
And
Will it create any problems in her Green Card process?
Thanks in Adv.
 
Suppose, if she gets H4 in spite the fact that she worked on EAD before, will she be allowed to enter into US?
>> of course. this is not an illegal procedure - its perfectly valid. Check out this link for some more info on H-1 & Advance Parole
http://murthy.com/UDnewins.html

And
Will it create any problems in her Green Card process?
>> Dont think it should. It would have if she did not have ability to come back on H-4


Thanks in Adv.
 
Hi Mgh2001,

Thanks for the link. I found foll. para in that link page.

"If a person obtained an EAD and then went to work for another company while waiting for the completion of her/his adjustment case, that action would effectively terminate the H-1 or L-1 status of the beneficiary and she/he would have to file for advance parole to travel. The H-1 or L-1 holder would not be able to renew the H-1 or L-1 status in this situation."

Does this para restrict my wife to go back on H4?

Thanks in Adv.
 
Once on I485 adjustment status, travelling on H4 will not make the adjustee ineligible to use EAD again.
That statement applies to the primary applicant and you are muddling the waters too much and getting confused with your simple situation.
You dont need the visa stamp on the passport. Go ahead and send the original I797 and ask your spouse to go for H4 revalidation. In your cover letter you can mention that you will be revalidating your H1 visa at St.Louis as soon as the H4 stamp is given and your spouse enters US.
 
Guys,

There is a bad news about my wife's H4 visa from Mumbai. Here is what happened.

She went and applied for her H4 in Mumbai. Consulate people took only my original I-797 and her passport.
After 3-4 days, she received her everything back without any H4 stamping and she was called for the personal interview.
She went on yesterday there for the PI and they asked funny question to her. They asked her whether she was in US in 1998. We both came to US first time in 2001. Then, they called her for the finger printing. Don't know why. Now, they have asked her to wait for 3-4 weeks for the decesion.

Could somebody explain me why they took her finger printing for H4 visa?

Thanks in Adv.
 
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