Canceling I485 --> previous H1 status --> Bringing wife --> Applying for AOS together

S

sd1975

Registered Users (C)
Hi, guys!

Please give me your opinion on my situation.
After I got married in my country I came back to the US using AP since my H1 wasn't extended yet. At that time I thought that my I485 will be approved in about 8 months and I can start Concular Process for my wife. After my returning to the US I realised that it's gonna take much longer.
So I have decided to bring her before getting my GC and started investigating this issue.
Thanks to this forum the situation became clear to me and I started planning to use my H1 extension approval for getting a new H1 for myself and H4 for my wife and coming back together on H1(H4) status. However from the very beginning my attorney was against this. She said that despite all the INS memos and other attorneys' opinions they still may consider my case abandoned after using H1 for entering the US during AOS. She didn't give me any alternative solutions so I decided to act on my own risk.
Today she suddenly called me and suggested me a different solution. She said that It would be much safer if I cancel my I485. This will turn me back to H1 status automatically and will not cancel my I140. After that my wife will be able to enter with H4 and and after her arrival we can file together our brand new I485.
I'm quite surprised with her solution since I've never heard before about anybody doing this. However it wouldn't be very smart just to ignore her point of view. So I'd like to hear an opinion on this whole situation from you, guys. Especially I wonder what happens when I cancel my I485? What status do I have after that? Are they gonna issue me a new I94 with my previous status?
Any kind of responce will be very appreciated.

Thank you very much,

VK
 
I have done quite a bit of research on this issue and I have found the following:

1. Assumng you have never used EAD: even after using AP, if you are working with the original H1B petitioner employer, then you are still on H1B status. Many people may argue this. To clear yourself out of it, you can always apply for an extension of your existing H1B petition and get back to H1B status. So, this is in the same thing that you have learned from this forum. This extension procedure is clearly written in INS memo. Check the following link:

http://www.shusterman.com/hlmemo500.html

Now, as you can get back to H1B just getting an extension, you can send the copy of that approval to you wife along with a status letter from your company and she can apply for H4. You dont need to go back home and apply for H1B. If you are from a SR country, then getting an H1B might take long time (my country takes 3-6 months), so I will not take that chance.

2. Assuming you have used EAD: Then you have lost your H1B status. Hence you need to apply for a file a new H1B petition. Once you have the approval, just do the same thing.

After waiting so long on I-485 stage, I dont think you should abandon it and start over again. Try every possible ways and if those do not work, then only withdraw your I-485. If you have used your EAD and you withdraw your I-485, that should question your status (I think you will be out of status). Hence I will suggest to get the H1B approval first and then withdraw 485, if you decide at the end.

I am going to be in the same boat. I am even going to try the following: I have already used my AP. I am going to use the original H1B approval to apply for my H1B visa in canada. It will take them 3 weeks to do the security check. In the mean time, I will come back to USA using AP and will keep working for the same employer. I will call the US consulate after 3 weeks and if they say it is ready to get stamped, then I will go back and get it stamped. I have asked this to my attorney and she is saying this should work. I am keeping my fingers and toes crossed till that day. keep posting of what you are planning. Wish you best of luck.

muntasir
 
Originally posted by sd1975
She said that despite all the INS memos and other attorneys' opinions they still may consider my case abandoned after using H1 for entering the US during AOS.
Click to expand...

For what it's worth, I've NEVER used AP to re-enter the US after my I-485 was filed. I've always used my H-1b. Your attorney (to put it bluntly) has no clue what she's talking about.

She said that It would be much safer if I cancel my I485. This will turn me back to H1 status automatically and will not cancel my I140. After that my wife will be able to enter with H4 and and after her arrival we can file together our brand new I485.
Click to expand...

WHAT?????!!!!!!!! She's crazy. First, if you've used AP to re-enter, withdrawing the I-485 will simply make you out of status and here illegally. It will NOT revert you to H-1B status. You're going to waste all of your I-485 processing fees and your time in the queue, and start all over? Will your brilliant lawyer pay for the filing fees for you? Will she do the second I-485 filing pro bono?

Don't even dream of withdrawing your I-485. If you've never used your EAD, you can re-enter on the H with no problems. Your wife can come with an H-4 and file the AOS when she arrives.

And get a new attorney.
 
Originally posted by muntasir
After waiting so long on I-485 stage, I dont think you should abandon it and start over again. Try every possible ways and if those do not work, then only withdraw your I-485. If you have used your EAD and you withdraw your I-485, that should question your status (I think you will be out of status). Hence I will suggest to get the H1B approval first and then withdraw 485, if you decide at the end.

I am going to be in the same boat. I am even going to try the following: I have already used my AP. I am going to use the original H1B approval to apply for my H1B visa in canada. It will take them 3 weeks to do the security check. In the mean time, I will come back to USA using AP and will keep working for the same employer. I will call the US consulate after 3 weeks and if they say it is ready to get stamped, then I will go back and get it stamped. I have asked this to my attorney and she is saying this should work. I am keeping my fingers and toes crossed till that day. keep posting of what you are planning. Wish you best of luck.

muntasir
Click to expand...

Hi, munstair!

I see your point. And I'm not argueing with you whether this will work or not. But nobody can tell you what opinion would have the officer conducting an interview to you. There is no low that explains what status do you have if used your AP, but on the border they give you a paper that shows that you are not on H1b status. There is no low that explains the dual intention concept of H1b but there is a low, which says that if you have left US without AP - you have abandoned your immigration case.
That would be good if the officer feels for us with our problems and gives us a GC right away. It would be much better if they just give us green gards not sending RFE and not calling us for an intervew. But who knows how they will act. It's more likely they will try to kick out of the country as much as possible immigrants.

I didn't change my employer, so my plan was exactly the same as yours. I have already got my visa extension approval and even scheduled an appointment in Vancouver. But my attorney is strongly suggesting me not to enter the country with a non-immigrant visa. May be she's got a point, who knows.

On the other hand it will take ages to wait for a GC anyway. At least we can live and work here even on AOS.

Guys, any other opinions?

VK
 
Originally posted by sd1975
I have already got my visa extension approval and even scheduled an appointment in Vancouver. But my attorney is strongly suggesting me not to enter the country with a non-immigrant visa. May be she's got a point, who knows.
Click to expand...

How explicit can I be? Your attorney is WRONG.

I do not have AP anymore; I just use my H to re-enter the country. There is a law on the books that states that H and L visa holders can leave and reneter without AP, with no consequences to the I-485 process.

Why do you want to waste your time and your money refiling the I-485, on the basis of bad advice from an unknowledgeable attorney?
 
Originally posted by TheRealCanadian
Why do you want to waste your time and your money refiling the I-485, on the basis of bad advice from an unknowledgeable attorney?
Click to expand...

Thank you very much, TheRealCanadian, for your advice. I completely agree with you, and I'm alredy on my way to get a new H1B and use it. However before I have performed any actions I want to stay open to any alternative solutions especially because this attorney is an exclusive attorney of my company and I don't want to break relationships with just because in my opinion she is unknowledgeable. Everybody in the company is satisfied with her since there were no mistakes so far despite the fact that some cases were quite complex.
I will have an appointment with her on Monday (She will return from AILA meeting). Before I make a decision I'm going to listen to her arguments as well. I'm going to ask her some questions (like how will I obtain H1B status after withdrawing my I485 without reentering US, etc.). I expect that we either both will come to a conclusion that H1B without withdrawing I485 is the only option for me, or she will give me some facts that I don't know yet and I will accept her option.
I will inform you guys on the results of this meeting.
Anyway It's allways good to have as much as possible options before choosing the right one.
I just wanted to discuss all the advantages and disadvantages of AOS cancelation option.
 
Hi, guys!

I talked with my lawer and finally got her "blessing" to do it "right" way (get H1B visa stamped, return back on H1B and bring my spouse on H4 without cancelling I485).
Thank you very much for your support. I don't know what would I do without your help.

VK
 
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