Experts pls take a stab on this one.

Originally posted by niladri30
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Does this mean that if mygcwaiter100's wife has an H4 stamped, AND mygcwaiter100's attorney files an I-485 on her behalf and obtains a receipt notice, she could enter under this rule, even if mygcwaiter100 uses AP?
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Nay. An Adjustment of Status may be filed on a person's behalf only if the said person resides in the United States.

What you have quoted is a summary of the INS memo, which we are all familiar with (to some extent) and the memo deals with "dual intent" of H-1 and H-4 visas. The summary was provided to help readers to understand that there is a way to bring a spouse in the country although primary applicant's AOS has been filed already. That is, if the primary applicant enters on H-1 instead of AP, s/he may still bring in the spouse on H-4 and will not abandon his/her pending AOS. It also emphasizes that producing a I-485 receipt at POE is one of the requirements.

My confusion continues to stem from the fact that I do not believe that mygcwaiter100 abandons his H1 status by entering on AP. Theoretically, if I-485 were later denied, he would still be in valid H1 status, if unexpired, would he not?
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A valid entry document ultimately identifies the resulting status in which a person is finally admitted into the country. Showing an AP at POE, the person will be admitted as "parolee", while showing H-1* (along with AOS receipt) at POE, the person will be admitted as "H-1*".

"Parolee" does not have any other status. H-1* visa remains valid and provided that the stamp in the passport is valid as well, the person may use the said visa for re-entry at some later date, effectively re-acquiring the "H-1*" status.

Entering on AP will not terminate any "status", because the person who attempts to enter does not have any status prior to admission. It may terminate a visa, such as F-1, for example (and even F-1 seems to remain valid after that, although it is not a dual-intent visa category).

The same way, if you have filed AOS while being in H-1B status, you remain in H-1B status until you start using your EAD. At that point, your status is terminated along with the H-1B visa, and your new status is "adjustee".

As for denied AOS, being in "parolee" status and having a valid H-1B visa... well, I believe that the person in question will have to leave the country in order to re-acquire the "H-1B" status. Should the person have maintained "H-1B" status continuously, e.g. not entering on AP, but on H-1B, then this re-entry process would not be required, because the status will remain "H-1B" even after AOS denial.
 
Just had a half an hour discussion with my laywer.

She said get a H1 visa stamp that way your spouse can also get H4 visa.

She will give me notarized (she made it before she sent the original 485 to me) copy of 485 which is as good as real. If someone question me at POE I can always call her and she will explain the things to the IIO.

She said laws here are confusing and leave the interpretation to the lawyers...
 
Come in late to work one day and miss out on an interesting thread.

Many thanks to both Niladri and BM for the analysis and differing view points. It is definitely helping throw some much needed light on this gray area of Marriage after applying for AOS.

My 0.02 $ on the issues discussed above have been:
1. Even though you enter on AP, your H1 status remains valid since H1 is a dual purpose visa, which means you can be on H1 and be an adjustee concurrently.
2. Applying for a H1 outside the US is not going to mark your AOS for abandonment.
3. Entering the US on H1 without an original 485 is a sure fire way of marking your AOS as abandoned.
4. There is no rule that the wife (H4 spouse), has to enter the country with the H1-spouse.

Hence going by the above points, my solution to mygcwaiter100's problem:
1. Go to India with I-797 paperwork, and apply for a H1 stamp on the passport.
2. Simultaneously, apply for wife's H4.
3. To circumvent the points posed by BitterMan above, let the wife enter the country (stand in line for immigration), before mygcwaiter100.
4. After she gets allowed into the country based upon her H4, mygcwaiter100 can show up at a different counter with AP in hand and get directed towards secondary inspection.
5. mygcwaiter100 and wife enter the country and live happily ever after.

Good luck to mygcwaiter100 and his wife! I would definitely get some lawyer to comment on the situation before commiting to either direction.
 
140_takes_forever.

Pls see my talk with laywer abouve.

It was more like half an hour talk but she basically said take a chill pill....

No need to get excited over a original 485 when we have a notarized copy of that....

and she did advice me to come on H1 stamp with my spouse...


I can see you relly want me and my future babe to be happy...thanks :)

btw thanks a lot to Bitterman, niladri and 140_take_for_ever. Bitterman you nearly got shi## out of my pant...hehehe
 
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I was J-1 to H-1. When I got my H-1 and my wifes H-4, she was in India at that time attending a family emergency. I sent her H-4 papers to india along with a copy of my passport (which had an expired J-1 visa stamp) and other regular stuff. I also sent a copy of my H-1 approval notice. She submitted all the documents to TT services in chennai and got her passport with an H-4 stamp back in a week. I was in US at that time and still am without any H-1 stamp in my PP. This was in april of 2001. I dont know if things have changed after that.
 
bjags,

damn now you have spoken ! i had a restless nite yesterday....almost had bit too many drinks..thinking about my babe..
 
mygcwaiter100,

Sounds like good advice to me! Now why din't I think of notarized copy of 485? :( Sorry about adding to the confusion. A Notarized copy should work fine! Plus your explanation about how the INS office took your 485 original when you went for eAP.

Don't forget to include the copy of the 485 in your passport along with your I797 when you hand it over for inspection/stamping. It is most essential. Draw attention to it if the IIO doesn't see it. :) Better safe than sorry!

Good luck with the marriage! :) I guess you are getting so used to being tortured by the INS decided to get a personal torturer! :) (No offense to anyone or their wives)! :)
 
Originally posted by mygcwaiter100
...and she did advice me to come on H1 stamp with my spouse...
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Do not overlook this advise, though. It is essential for the whole procedure.

...She said laws here are confusing and leave the interpretation to the lawyers...
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In regard of originality of I-485 receipt, that is. I'd say that anticipation of a certain risk and proper preparation is better than just hope for the best. Anyway, you should be just fine with a notarized copy.
 
Oh, by the way. There is another, relatively painless, path to bring a spouse into the country. The goal is to file AOS for her, right? So, before marrying her, let her obtain a B-2 in a consulate abroad and enter the country using that visa. After that, you can marry here and file her AOS. Having done that, get a couple of APs, go back and have a big wedding as appropriate.

There are complications in adjusting one's status from B-2 to of a Legal Permanent Resident, though. I'd consult a lawyer who dealt with this kind of cases before making a move.
 
I would suggest you guys should have a FAQ theard on most commonly and interesting chat (and put this one there :D :D :D

Could benefit someone else who is in the same shoes as myself.
 
I am an enlightened soul.....wonderful discussions

gcwaiter's case will challenge every BCIS DOGma, I suppose

So it is "every dog has its day....or night ...as appropriate"

and "love thy neighbour's (dog)..."

have fun

warm regards

Hari_Seldon
 
What is my current status?

Bitterman/niladri/I140_takes_4_ever

Dudes, going through this thread seems like I am in a very tight situation.

I applied for AOS in Feb 2002, went out it in Feb to get married, returned back in March 2002 with original I-485 recipt. I put it in passport, but I am quite sure Immigration office did not take notice of it. I did not take any special step as my lawyer said officer will ask question if they want to? Does it mean my I-485 has been abandoned? What do Immigration officer do with original receipt, any idea? I entered on same H1 visa on whose basis I applied for AOS.

Since then I have been fingerprinted, applied for my wife's AOS and had received 2 AP's and 2 EADs. My H1 has expired and working on EAD now. Any idea, when they report AOS abandoned?

Thanks guys.
 
Re: What is my current status?

Originally posted by INSBeats2death
Dudes, going through this thread seems like I am in a very tight situation.
My H1 has expired and working on EAD now. Any idea, when they report AOS abandoned?
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INSBeats2death,

Please don't misunderstand the thread. It was not to be alarmist. We were not discussing absolute certainties here, instead possibilities and legality. As seen in the past there are more chances than not of people entering on H1 without showing 485 receipt and actually getting approvals.

Bottom Line:
Entering on H1 without showing 485 does not mean automatic abandonment. But it is possible for INS to mark your case for abandonment.

Coming to your specific case, since you have already applied for 2 AP's and EAD's not to mention derivative AOS, I wouldn't be worried about your case being marked for abandonment. :)
 
Thanks..

I was of the same impression as what you said, but you mentioned, "showing I-485 is most essential", tripped me off.

Not to mention, this AOS wait and floating INS horror stories have turned me into an alarmist. Thanks for your response.
 
Re: Thanks..

Originally posted by INSBeats2death
you mentioned, "showing I-485 is most essential", tripped me off.
Click to expand...

I still stand by what I said :), mygcwaiter100 has yet to enter the country on H1, hence that advice was good advice for him and people in his situation. Better safe than sorry!
 
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