EAD and H4 status

[vine95050]

I would appreciate if you could answer:

The primary applicant is maintaining valid, continuous H1B status all throughout the 485 process.

1. If an H4 spouse starts using EAD (based on husband's
AOS application) to work, does she lose her H4 status?

2. Can a spouse who is using EAD to work, based on
husband's AOS application, do a change of status to
H4?

3. What happens to the status of the spouse who is using
EAD to work if her husband's (primary applicant) 485
is denied?

4. How much time do they allow her to do a COS to
H4 to save her legal status?

Thanks a lot for your time.

 

[TheRealCanadian]

If an H4 spouse starts using EAD (based on husband's
AOS application) to work, does she lose her H4 status?

Yes.

Can a spouse who is using EAD to work, based on husband's AOS application, do a change of status to H4?

I doubt it. I've never heard a definitive no on the subject.

What happens to the status of the spouse who is using EAD to work if her husband's (primary applicant) 485 is denied?

Nothing, until her I-485 is denied - which it most likely will be at the same time since she is a derivative applicant.

How much time do they allow her to do a COS to H4 to save her legal status?

None, and I am unsure if it is even possible. She'll need to leave the US, get a new H4 stamp and re-enter.

 

[vine95050]

...
..
None, and I am unsure if it is even possible. She'll need to leave the US, get a new H4 stamp and re-enter.

Thanks, TheRealCanadian for your response. We have yet to receive our EADs. I'm trying to learn the pros and cons, and all the options of using an EAD (by an H4 visa holder).

In the event of 485 denial, how soon the EAD user (previously in h4 status) would have to leave the US -- the same day the denial comes in? But the notice date is usually a few days before the receipt date (by the applicants). Technically, if one is using EAD, that person is out of status from the notice date of the denial of the EAD/485. In other words, that person is already of out of status for 3-4 days by the time she receives the 485 denial notice. Am I right?

If one already has valid H4 visa in her passport and her 485 is denied, she could go out of the US and enter using her existing valid H4 visa to be in status. Am I right? Thanks once again.

 

[TheRealCanadian]

In the event of 485 denial, how soon the EAD user (previously in h4 status) would have to leave the US -- the same day the denial comes in?

Officially yes, but practically speaking there are no consequences for not doing so until 180 days have passed, at which point the 3-year bar kicks in. So that means one does have some time to file an MTR and/or plan out the trip to get the H stamping, but don't dawdle too long.

If one already has valid H4 visa in her passport and her 485 is denied, she could go out of the US and enter using her existing valid H4 visa to be in status.

What "existing H4 visa"? That become invalid automatically when the EAD got used.

 

[vine95050]

What "existing H4 visa"? That become invalid automatically when the EAD got used.

TheRealCanadian, I double-checked this with a lawyer and he differs. Here's what he said (for the same question):

"She can always reenter on her H4 as long as you are still maintaining H1B status. However, she will violate that status the moment she begins working on her EAD."

In other words, spouse's H4 visa in the passport is still valid for reentry, if the primary applicant is maintaining the valid H1B status.

 

[TheRealCanadian]

TheRealCanadian, I double-checked this with a lawyer and he differs. ... In other words, spouse's H4 visa in the passport is still valid for reentry, if the primary applicant is maintaining the valid H1B status.

My understanding is that any overstay or violation of status automatically voids the visa stamp. Since employment (even authorized with an EAD) is a violation of H-4 status, why would the visa stamp survive?

 

[vine95050]

My understanding is that any overstay or violation of status automatically voids the visa stamp. Since employment (even authorized with an EAD) is a violation of H-4 status, why would the visa stamp survive?

This probably is not completely correct.

I did some more research/asking around on.. Here's how the second lawyer reponded.

"Just because a person on H-4 starts working based on EAD does not mean that her/his H-4 becomes invalid. The H-4 will only become invalid when the H1B spouse loses his/her H1B status, or the parties obtain GC, or the H4 departs from he US..."

Also,
(presuming H4 is using the EAD)

Q2. If one already has valid H4 visa in her passport and her 485 is denied, could she go out of the US and enter using her existing valid H4 visa to be in legal H4 status?


"The Answer is an emphatic "YES"." (Answered by the second lawyer)

So, the two lawyers I got in touch with have similar opinion. In nut shell,

-- H4 visa is still valid if one uses EAD.
-- If H4 visa is still valid one could go out and reenter in H4 status in the event of 485 denial.

 

[TheRealCanadian]

Just because a person on H-4 starts working based on EAD does not mean that her/his H-4 becomes invalid. The H-4 will only become invalid when the H1B spouse loses his/her H1B status, or the parties obtain GC, or the H4 departs from he US...

I am at a loss as to how a multiple-entry visa becomes invalid when one leaves the United States, but please do me a favor if you can and forward this on to the attorney:

1. Does using an EAD cause a loss of H-4 status?
2. Are visa stamps invalided upon a violation or loss of non-immigrant status?
3. If #1 and #2 are YES, would EAD use invalidate an H-4 visa stamp? If not, what portion of the CFRs or INA grants this exemption?

The Answer is an emphatic "YES"." (Answered by the second lawyer)

But your question explicitly presumes the visa stamp remains valid. If you word your question that way, then I'd have to say yes - but we're not sure wether the visa stamp remains valid.

Apologies if I sound argumentative, but what the attorneys are saying doesn't wash with me, and the only attorney whose word is gospel to me is the Chief Counsel of USCIS.

 

[vine95050]

I am at a loss as to how a multiple-entry visa becomes invalid when one leaves the United States, but please do me a favor if you can and forward this on to the attorney:

1. Does using an EAD cause a loss of H-4 status?
2. Are visa stamps invalided upon a violation or loss of non-immigrant status?
3. If #1 and #2 are YES, would EAD use invalidate an H-4 visa stamp? If not, what portion of the CFRs or INA grants this exemption?



But your question explicitly presumes the visa stamp remains valid. If you word your question that way, then I'd have to say yes - but we're not sure wether the visa stamp remains valid.

Apologies if I sound argumentative, but what the attorneys are saying doesn't wash with me, and the only attorney whose word is gospel to me is the Chief Counsel of USCIS.

That's okay. no apologies needed.. This is a good brainstorming process.

I thought of not divulging the attorneys' name etc., but since the second one is on a public forum, I'm giving the url for my questions and his response. I think that might answer your questions and clarify, atleast from this lawyer's point of view.

Here's the url (I used the same usernme - vine95050 in this forum):
http://www.bharatwaves.com/portal/modules/newbb/viewforum.php?forum=33
scroll down for the forum.

Also, regarding your second question "Are visa stamps invalided upon a violation or loss of non-immigrant status?", I personally know of a case where an individual came here on 3 yr H1B, in a couple months did a COS to F1 to do an MBA, finished his MBA, joined another company in H1, got new 797 with I94, traveled out of the US for vacation, re-entered using the old, valid H1B visa in the pp (and his new 797), had no problem at the POE, got new dates on his I94. I think this type of incident/procedure is not an aberration. But overall you're right -- "the only attorney whose word is gospel to me is the Chief Counsel of USCIS."

 

[TheRealCanadian]

I personally know of a case where an individual came here on 3 yr H1B, in a couple months did a COS to F1 to do an MBA, finished his MBA, joined another company in H1, got new 797 with I94, traveled out of the US for vacation, re-entered using the old, valid H1B visa in the pp (and his new 797), had no problem at the POE, got new dates on his I94.

That would be correct, since there was a valid change of status. When I mean loss of status, I mean some violation or cessation of eligibility, not a legitimate COS based on petition to USCIS. As an example, an H-1 holder being laid off, or an H-4 holder whose spouse uses an EAD or changes status out of H-1.

There's a section of the INA that IIRC states that any violation or loss of status while in the US automatically invalidates the visa stamp. Never having gotten a visa stamp myself I am not 100% up to speed on these matters, but it seems to me that EAD use would also trigger this section.

Does anyone remember the section number, or do I need to hunt down the INA myself?