Do we need I-539 approved to get H4 stamping?

kiranmm13

Registered Users (C)
Hello all,
I am here on H1B visa and my wife is in H4 visa.
We have filed for 485 last year and case is still pending. We both have EAD and AP. My wife is working on EAD right now.
My lawyer applied for my H1B extension and he filed for I-539 for my wife's H4

My I-129 is approved and they have mailed the approval notice, my wife's 539 is still pending and processing dates on uscis website os oct 2007.

I plan to go to mexico or canada to get my H1B stamping done and also plan to take my wife with me to get her H4 done. Now do we have to wait till her I-539 is approved or she can get her stamping done on my 797 ?

Can someone help, I need to book the appointment very quickly as dates are running out.

Thanks in advance.
 
Yes, I-539 approval is required for h4 visa stamping, normally along with I-129 spouse's approval (I-539) also do come. Btw you can use Advance parole for your out of country visits
 
Hello all,
I am here on H1B visa and my wife is in H4 visa.
We have filed for 485 last year and case is still pending. We both have EAD and AP. My wife is working on EAD right now.
My lawyer applied for my H1B extension and he filed for I-539 for my wife's H4

My I-129 is approved and they have mailed the approval notice, my wife's 539 is still pending and processing dates on uscis website os oct 2007.

I plan to go to mexico or canada to get my H1B stamping done and also plan to take my wife with me to get her H4 done. Now do we have to wait till her I-539 is approved or she can get her stamping done on my 797 ?
--------------------------better go for visa stamping AFTER she gets her H4 extension approval notice. you dont need Visa stamp if your H1 approval notice has I-94 attached and go for your and your wife Visa stamping later when her H4 also gets extended.




Can someone help, I need to book the appointment very quickly as dates are running out.

Thanks in advance.

--------------------
 
On almost all occasions, consulates do not check spouse's H-4 and issue H-1B visa and H-4 visa ONLY based on the H-1B petition alone. If the H-1B petition, supporting documents, non-immigrant history, company profile, etc., are all good, H-1B and H-4 visas are issued without any problem.

I personally know of a couple of cases where consular officers did not even bothered to look at H-4 (in fact, they were unaware that the spouse was actually living with the applicant in US).

Therefore, an H-1B visa holder can take the spouse for the same appointment even if the H-4 application is pending with USCIS. Obviously, the H-4 would be considered abandoned in this case.
 
Thanks all for replies

Ginnu: Actually I am going to India in december for 3 weeks so I want to get it done.

JohnThomas82: Can you explain more "Therefore, an H-1B visa holder can take the spouse for the same appointment even if the H-4 application is pending with USCIS. Obviously, the H-4 would be considered abandoned in this case."

H-4 would be considered abandoned meaning the H4 extension application ?

Thanks all.
 
Correct. Most applications are considered as "abandoned" by USCIS if the beneficiary leaves US while the application continues to be in a pending state. An exception to that rule is I-485, where an alien can leave US with an approved advance parole in hand.

nscagony -- by quoting "non-immigrant history", I was commenting about H-1B holder's non-immigrant history, not H-1B holder's spouse related history.
 
Correct. Most applications are considered as "abandoned" by USCIS if the beneficiary leaves US while the application continues to be in a pending state.

-----------------Only Change of status is abondned NOT extension of status

An exception to that rule is I-485, where an alien can leave US with an approved advance parole in hand.

nscagony -- by quoting "non-immigrant history", I was commenting about H-1B holder's non-immigrant history, not H-1B holder's spouse related history.

--------------------------
 
Thanks ginnu and JohnThomas82 for your answers.
I am still getting confused with the technical language, so basically if the application for extension of H4 (I-539) is abandoned but she gets an H4 stamp than all is good right ?
I should see any problem of my spouse leaving the country while the H4 exyension application is still in process.
 
I am still getting confused with the technical language, so basically if the application for extension of H4 (I-539) is abandoned but she gets an H4 stamp than all is good right ?
----------------------her H4 extension application will not be abandoned if she goes out of US. she should keep copy of her H4 Extension filing when go for Visa stamping and show only if asked.

I should see any problem of my spouse leaving the country while the H4 exyension application is still in process.
----not a problem, take the H4 extension filing reciept so that she can show the USCIS consulate that she filed her H4 ext on time(before her I-94 expiry date) show only what is asked.
-----------------
 
Thanks ginnu for all the replies.
I am still debating whether to go to mexico for stamping (I have been there previously and it goes smooth, everything done in one day or when I go to India just get it done that time). I am still trying to research how the PIMS thing is delaying or affecting stamping in India. I heard they are making lot more strict in mexico as well. Do you have any information about PIMS?

My question actually is lets say for instance for any reason consulate denies my H1 i can still re-enter US if we have AP right ?

Thanks again
 
Thanks ginnu for all the replies.
I am still debating whether to go to mexico for stamping (I have been there previously and it goes smooth, everything done in one day or when I go to India just get it done that time). I am still trying to research how the PIMS thing is delaying or affecting stamping in India. I heard they are making lot more strict in mexico as well. Do you have any information about PIMS?

My question actually is lets say for instance for any reason consulate denies my H1 i can still re-enter US if we have AP right ?
------------------------YES, you can use valid AP to enter US

Thanks again
Here is info from attorney Matthew Oh regarding PIMS

08/18/2008: Nonimmigrant EB-Visa Application Potential Delays Associated With PIMS

AILA has reported that this problem is still continuing and the EB nonimmigrant visa applicants who changed or extended the EB nonimmigrant status, particularly before late March 2008, may have to be prepared for the potential delays at the visa posts. This advisory applies only to those whose EB nonimmigrant EOS or COS duplicate original copy was not filed with the Service Centers at the time they filed I-129 EOS/COS petitions. There are a couple of things people should remember:

The visa posts no longer requires the original I-797 EB nonimmigrant EOS/COS approval notices issued by the Service Centers, but people may still have to carry it with them as the CBP officials at the airports may still require such original I-797.

Filing I-824 is neither required nor of help in the event that the people failed to file I-129 in duplicate. People may not waste money and time.

If the duplicate has not been filed, it is likely that the visa posts will issue a notice to such visa applicant that the visa application is "in administrative process." This language implies that the KCC does not have his/her I-797 approval record in their system and the KCC is in the process of accessing the USCIS CLAIMS database to get access to the USCIS approval action. Currently, only KCC has access to the USCIS CLAIMS database and not visa posts. This process will cause some delays for the visa posts to issue the visas, but they will be able to issue the visas eventually once the KCC completes the CLAIMS verification. This is one of the reasons why filing I-824 is not helpful at all considering the fact that I-824 has its own processing backlogs.

Report indicates that the problem may persist until the USCIS electronoc filing system of Transformation Program is completed, which is still miles away. It is thus imperative that the EB nonimmigrant status extension or change of status applicants file the petitions "in duplicate" in every and all situations. Once the duplicate is filed, the USCIS forwards the second set to the KCC under the agreement between the USCIS and the State Department, and the KCC will be able to verify such record immediately upon the visa posts requests. Neither visa posts or involved aliens currently have any means to check the KCC record prior to filing of visa applications.

What are the sources of the problem? It all boils down to the funding problem. The USCIS does not have financial and human resources to forward every single EOS or COS approval to the KCC and at the same time cannot allow the visa posts overseas to get access to the USCIS CLAIMS system until the Transformation Program is completed when all the EOS/COS will be filed online and no paper filing will be permitted. People should thus work within the given situation. "Given situation" means (1) Always File I-129 in Duplicate, and (2) If Failed to File in Duplicate, Be Prepared for Potential Delays in Visa Issuance at Visa Posts, Particularly if Filed Before Late March 2008!
 
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