Can spouse apply(join) for 140/485 without I-94

[bhartiya_12]

My 2nd H1 (fresh not an extension)just got denied y'day. My 1st H1 expired 15th Jan. Had to file new since new employer messed up with dates and did not apply for extension/transfer in time. So i am here in US living as out of status as my i-94 expired on 15th Jan.

My wife (she is on H1) is getting her GC processed and can the employer file for her and my 140/485 saying that she is here on H1 and I (spouse)am in India so i would not need to give I-94 for me? Once the EAD comes I can apply for Advance parole and go out to get I-94.

I am wondering if this is feasable as I also thought the only option I have is go to India and try h4 but don't understand why the employer never asked me to take that route, instead he said we'll immediately file for GC(140/485) for your wife so I am guessing this is what he plans to do. He has an approved labor he will use for my wife's labor approval process for GC.

Please respond soon.

Thanks

 

[kenboo]

In terms of AOS, both primary applicant and dependents(spouse) must have valid status in the US, so I think the 1st option wouldn't work. Also it's bad idea to make a false statement in the application as if you were in India.

The 2nd option, change of status from H1B(strictly speaking it's out of status though) to H4 status may be possible to do in the US. You'll get new I-94 if accepted & approved. I think it's much easier to travel back to India to get H4 visa and enter the
US on H4 status. Please talk to lawyer.

The 3rd option I can think of is Consular Process. You actually go back to India, and wait for I140 to be approved, and have interviews at consular of American embassy.

I think 2nd option is the safest. Either way, my point is to minimize the period of out of status.