Do I need drop my wife's case and re-apply for her?

H

hlin4

Registered Users (C)
Hi All,
This is my story. Maybe some of you guys already knew it, because I keep posting these days, since I don't know what I should do now.

Last month (this Sep) I got laid-off, at that time my I-485 pending > 180, I-140 approved, EAD valid till Jul/2005, so I got a new similar job this Oct with my EAD.
From the begining of this year, my wife went to Vancouver, Canada several times for training there and came back to U.S with H-4. This Aug, she went to Canada again and stay there for training till now, and we didn't apply for AP, since she used H-4 very well and I didn't expect my laid-off so soon.

Since I already worked with EAD, that means, my H-1 and Her H-4 is invalid now. So she cannot come back to U.S with H-4. By the way, she also got FP notice on Nov/29/2004.

Although she can come back to U.S with Travel visa, someone told me that means abandoning her I-485 case.

So, I wanna drop her case, and re-apply I-485 for her.

1) Since I already used my EAD, is it possible I ask my employer to transfer H-1 for me, and then my wife can still get H-4 back.

2) Is there anyway that I can save her case?

3) If no way to save her case, Is it a big trouble to re-apply her case?

4) Does all this affect my I-485?

I need you guys' suggestion to decide what I should do next.

Hai
 
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Another option may be to file an I-824 and have her change to consular processing. She would ave to stay out of the US until she gets approved, but at least she won't lose her place in line

If she reapplies the I-485 then she would lose her place in line.

If she enters on on her invalidated H4 without an AP she may have trouble at the border, and her case would be abandoned.

If she enters as a tourist (B2), her case would be 100% considered abandoned.

If she abaondons the case, and then reaplies for I-485, then they may consider the reapplication as abondonded also. This might be fixable after an RFE or an inteview, but I would conuslt an immigration lawyer if I were you before you proceed with this option.

If she waits for an AP, she'll miss her fingerprints, which will mean her case will be considered abandondoned. There is still a chance that she could try to reschedule the fingerprints, and wait for the AP, not sure if the rescheduling would buy you enough time. Anyone know how long into the future fingerprints can be rescheduled?

If I were you I'd send the AP application right away. You still have about 3 weeks until the fingerprint date, so get moving. Miracles have happened but you've got to move fast. Try to get the fingerprints rescheduled as long as you can, as many times as you can, tell them she is waiting for her AP to get approved so she can return. If it is getting close to the rescheduled fingerprint date, and they won't rescedule anymore for her, and no AP yet, then try to go to the local office to get an emergency AP. (Remember it takes 2 weeks for an InfoPass appointment, so you need to take this into consideration) Show them the AP application, and the fingerprint notice. Someone said that emergency AP's are no longer issued at local ofices, but remember this is a last ditch effort, don't consider this to be the first resort. If the all fails, and if her AP does not get approved in time to get to the rescheduled fingerprint appointment, then her case wil be considered abondoned, and then I would suggest you file for I-824 and take the consular route as a last resort. Not sure if you can file I-824 on an abondoned I-485. the last option would be to file a follow to join, but again, can this be filed once the person had an abondoned I-485? Not sure.

What does your lawyer say?
 
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CuriousGeorge,
Thanks a lot for your detailed explanation.

Based on your reply, I would like to do:

Choice 1:
1) Apply AP for her right away, and reschedule her FP. (But she is in Canada now, someone told me it is invalid to apply AP.)

Choice 2:
2) Taking risk let her come back with H-4.
 
If she has valid H4 visa, she can come back on that visa.
I have read conflicting reports about H1 Visa and EAD.
People say that even if you have EAD but not used it, your H1 is still valid.
How INS knows that you are using EAD which invalidated your H1 visa.
I think as per INS records, your H1 will be valid and so her H4.
Other argument you can make is she doesn't have EAD or AP. So her H4 should be valid.
 
She can hopefully come back with her h4 with extreme confidence on her face. If questions are raised she can say my husband has just switched his company so I am going to apply for AP as soon as I get back.
 
superb said:
Other argument you can make is she doesn't have EAD or AP. So her H4 should be valid.
Click to expand...

As he used EAD card for his primary job, his H1 and her H4 is no longer valid. This cancellation is automatic and USCIS does not need to be informed about it. But it's true that probably USCIS won't be able to know about your H1 cencallation, hence her H4 will be considered valid at border.

superb said:
Other argument you can make is she doesn't have EAD or AP. So her H4 should be valid.
Click to expand...

What's the logic behind that???? :confused:
 
hlin4 said:
CuriousGeorge,
Choice 1:
1) Apply AP for her right away, and reschedule her FP. (But she is in Canada now, someone told me it is invalid to apply AP.)
Click to expand...

If she surrenderred her I-94 at border, you won't be able to apply for her AP because you need copy of current I-94 for applying AP.

hlin4 said:
Choice 2:
2) Taking risk let her come back with H-4.
Click to expand...

That will probably work, if she does not get nervous and can answer question properly.
 
I think there is no risk involved. you can send the pevious w2 if you want but she can come in with no problem. how long she was out of country?
 
Trooper,
she was out of the country 7 weeks.

I'll try to let her come back using H-4, though it takes risk.

Thank you guys.

hlin4
 
It is very likely that USCIS has not processed the termination of H1 yet...
I would suggest take a chance and try to re-enter the country on H4 stamp.
talk to a lawyer
 
Hi Guys,
Thanks you all.

I don't think my original company cancelled my H-1, if it's not cancelled, I will let her come into U.S by H-4, though there're risks.
 
Guys, there's a lot of misinformation flowing through this thread.

First, the expiration of the wife's H-4 visa stamp has NOTHING to do with her inability to enter in H-4 status. She is no longer the spouse of an H-1 holder, therefore she is ineligible to enter as an H-4. End of story.

If you want to try to get her to enter, the odds of your H-1 invalidation being detected will be very low. However, should this come to light at the POE she will certainly be denied entry. If you have counseled her to enter and told her that she doesn't qualify for H-4 status but to try anyways, then both of you could get into a lot of trouble if this is discovered. The odds are low, but the impact is high.

Abandoning the wife's I-485 application will do absolutely nothing, since she will still have no way of returning to the US.

The only way to bring the wife back is to get the new employer to file an H-1 for the alien. Once the receipt notice has been received, leave the US and re-enter with the receipt, claiming AC21 H-1B portability. Bring the wife along on H-4. If you want to be surer, spend the $1000 and get the H-1 processed using Premium Processing; then send a copy of the approval notice to the wife for her to enter with.
 
I think even if he get the new H1 approval notice (will not include a new I-94), he is still in AOS status, not in H1 status. To get H1 back, need H1 stamp and reentry. Maybe I'm wrong.
 
TheRealCanadian,
Thanks for your reply. Got two questions:

1) I already used my EAD to work for current employer, is it fine that I also apply H-1B tranfer? (I already know my original employer won't cancel my H-1)

2) If I cannot get a H-1 again, how risky that I apply AP for her and then send the approved AP to her, then she comes back with AP.

3) Compared applying AP for her and comes back with current H-4, which one is risker?

4) Does this affect my I-485 case?

Looking forward to your reply! Since I will make decision this two days!
 
hlin4 said:
2) If I cannot get a H-1 again, how risky that I apply AP for her and then send the approved AP to her, then she comes back with AP.
Click to expand...

If she surrenderred her I-94 at border, she cannot apply for regular AP. There are special circumstances when AP can be applied while beneficiary is abroad (therefore don't have I-94). I am not sure you situation (sudden layoff) falls into that category.

Instead of measuring the risk factors here I would recommand you to discuss with a lawyer.
 
You may not be able to apply for H1 transfer as you are already out of status by using EAD. So you can only apply for new H1 and I'm not sure whether you need to go out of the country and come back for that and also it'll take a lot of time compared to H1 transfer. I think 2 to 3 months min.

Why don't you visit a good immigration lawyer and pay whatever it takes.
You can contact -
****************************************
Sean Walgren, Attorney
Immigration Law
Law Office of Helga M. Carson
399 Sherman Avenue, Suite 9
Palo Alto, CA 94306
Tel: (650) 326-9880, ext. 16
Fax: (650) 326-9881
E-Mail: swalgren@imm-law.com
****************************************
 
New H1 may not be an option as it's subject to current fiscal year quota, which has already been used up by 10/01/2004. The next fiscal year won't start until 10/01/2005.
 
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