From 485 (AOS) to H1 (Attorney's suggestion)

S

Sri4GC

Registered Users (C)
Hi,

Case : 02-120-5xxxx

RD: 02/14/2002
FP: Sep 2002

Got married in mid 2002. Activated EAD and opted for follow-to-join expecting 485 approval soon. However, nothing happened as expected. Talked to lawyer recently only to know that follow-to-join (I-824) taking more than a year now-a-days. My 485 is not approved yet and don't know how long more it takes then I have to wait one more year or more. Thought of abondoning 485 process and told lawyer the same.

He said we could apply for new H1 requesting change of status (COS) from AOS to H1 and AOS won't be affected by all this. Sometimes, it is approved without any problem within the US, he added, but in some occassions they may ask you to leave the country, get the passport stamped in the respective consulate and reenter. Once H1 is activated you are back on H1 status, he cautioned, and all this has to be done before the 485 approval.

If it is approved here itself that is well and good. If not I have to go to India and get it stamped. Either way I can get the H4 done in the process, that is the bottom line. In the worst case, H1 stamping, in turn H4, is denied then I have to return back on AP, I do have valid AP, EAD, EVL and current pay stubs.

So now I'm thinking of applying for H1 thru premium processing and take it from there.

Gurus...your comments and suggestions are welcome. Is there any risk involved in this? Anybody who did this or knew someone who did this before please share your experience with me?

Thanks,
+Sri
 
Last edited by a moderator:
my attorney gave same info

when asked what happens if there is diifficulty in renewal of EAD, I was told that I can use my approved H1 extension , go outside the country and return after getting it stamped.
Haven't seen this in practice though
 
Originally posted by Sri4GC
Hi,

Case : 02-120-5xxxx

RD: 02/14/2002
FP: Sep 2002


Gurus...your comments and suggestions are welcome. Is there any risk involved in this? Anybody who did this or knew someone who did this before please share your experience with me?

Thanks,
+Sri
Click to expand...

I did this. I've been on AOS/EAD until I got screwed by EAD expiring and not getting the extension on time which led to about a month without working permit. The lawyer suggested to apply for H1 again with premium processing.
I got the H1 in less than 3 weeks and had to take unpaid leave only for 3-4 days (from the moment the EAD expired and til I got the H1).
The process was smooth. Despite the fact that the lawyer said that I might have to get out of US and come back to get the COS (basically get a new I-94) BCIS did the COS automatically and along with the H1 petition I got a new I-94.
Just in case you are unlucky and for some reason they don't automatically change your status, all you have to do is to go to Canada (whichever big city is closer to you - if you are in Bay Area you would go to Vancouver) and get the stamp in your passport from the US consulate and then come back on H1 visa.

For more details do a search in the forum archive for Gica. You will find the original threads from the moment I was in trouble.

My case # is 116 ...

Good luck!
Gica
 
Sounds like good advise to me! As long as your lawyer is capable of carrying out his end when it comes to RFE's and other issues!

Good luck!
 
Thanks...

Thanks to Gica and 140_takes_4ever for your responses.

To Gica...
Based on your response I understood that applying for new H1 does not mean abondoning 485 process. You have any idea whether there would be any complications in getting H4 once H1 is approved... like 'Why didn't you get H4 done before activating EAD' etc...
If you don't mind can you pass on to me your lawyer information?

Thanks,
+Sri
 
Applying for a new H1 does not affect your AOS processing.
The only grey area I can think of is if BCIS does not issue a new I-94 for you (COS). In that case you will have to leave US and come back which might require you to have an AP.
As far as I know, and based on what the lawyer told me, you should have AP when you leave US, even though you are planning to come back on H1. I guess that's an extra measure of precaution in case for some reason you fail to get your passport stamped with the new H1.
I wouldn't worry about that since the probability of BCIS not doing COS is very low. My lawyer told me that when he filed for H1, he explicitly requested that COS to be done by BCIS reasoning exactly what I told you above.

Regarding H4 I am not sure why you need that. Your wife is an adjustee already therefore she is not out of status. She can remain an adjustee even if you switch back to H1. The only reason you switch to H1 is to have work permit. I guess your wife is not working therefore makes no difference if she's adjustee without EAD or H4 holder unless she needs to travel outside US and does not have AP.
If she needs to travel, then you should get an H4 for her, but then you hit the same dilema. If she has problems getting her passport stamped and no AP, you will have to cook food for yourself longer than planned. :)

Me and my wife took the decision not to travel out of US (unless emergency reasons which I hope will not happen) until we get our GCs.

We should all thank to BCIS for making our lives so "interesting".

Have "fun"!
Gica
 
any ideas on AOS to H4

Did anyone else also face an issue of spouse working on EAD then reentering US on H4 (thanks to non availability of AP 'cos of the delay in AP processing by BCIS) and then filing for EAD again?
Is it legally permissible?
 
Question to Gurus...

Gica...Thanks for your reply.

The only reason I have to do all this is my wife has never been in the U.S. I filed follow-to-join for her once I got married. Now, I have to wait till my case is approved and wait for her case to be approved by Indian Consulate in Chennai.

I'm not sure when my case is going to be approved. Ironically, Indian Consulate in Chennai is taking more than one year, according to my attorney, to approve follow-to-join cases. I got alarmed by this news and explored different options available for me.

Now, the question is 'Will the consulate in India give me a hardtime to get the H4 done because of the delay, I got married in mid 2002?'

Thanks,
+Sri
 
You might need to consult an immigration lawyer for this issue.
IMHO it should not matter. Since AOS and H1/H4 can coexist, same way, an application for "follow to join" should not be affected by an H4 application. But again, that's just MHO and is based on my logic, therefore can not be fully trusted.

GG
 
From AOS to H1B

Hi:

I am using EAD to work for another employer, have valid AP. H1B from my previous employer is still valid. I am also thinking of applying for COS from AOS to H1B by filing new H1B under premium processing. Do I need to get H1B stamping even if I get I-94 with H1B approval as the current visa stamp is with previous company? Would this create any issues for H4 stamping or do i have to get h1b stamping before applying for my spouse's h4?

Thank you guys in advance.
 
Re: From AOS to H1B

Originally posted by mereguru
Hi:

I am using EAD to work for another employer, have valid AP. H1B from my previous employer is still valid. I am also thinking of applying for COS from AOS to H1B by filing new H1B under premium processing. Do I need to get H1B stamping even if I get I-94 with H1B approval as the current visa stamp is with previous company? Would this create any issues for H4 stamping or do i have to get h1b stamping before applying for my spouse's h4?

Thank you guys in advance.
Click to expand...

I am in identical situation as yours. I have also been thinking about COS, but I am not sure of the ramifications. I only hope that AOS will not be automatically cancelled by COS. Well I think you will need to get new H1B stamped for your spouse to get H4. I am going to get H1B stamped next month in India, and then plan to get married in June. I hope this COS works out. My lawyer doesnt know much about COS ??? What does your lawyer say about this situation? Please keep us posted on your findings.
 
Re:From AOS to H1B

I read in this thread that one doesn't need H1B stamp if INS sends I-94 with new H1B. I would like to clarify that as visa stamp in my passport is with the previous employer.
 
Re: Re:From AOS to H1B

Originally posted by mereguru
I read in this thread that one doesn't need H1B stamp if INS sends I-94 with new H1B. I would like to clarify that as visa stamp in my passport is with the previous employer.
Click to expand...

I also got H1B with I94 attached to it. But I think one always gets I94 attached to H1B. Is this not true?? I am not sure what is the procedure for COS, does I94 on H1B of a person working on EAD automatically mean that his/her status has been changed from AOS to H1B? The above post seem to indicate that though. But how do we confirm? My lawyer doesnt know about any of this. He tells me once you work on EAD, you cant go back to H1 status. I am planning to go to India, get my H1B stamped and return on AP. I hope this will not have any adverse effect on my AOS/GC. Gurus please advise.
 
A few clarifications:

1. I94 has NOTHING to do with an entry visa. I94 is just a document that deals with the length of your stay in the country, while the visa is used to enter the country. Don't confuse the two.

2. If you have worked on EAD, you HAVE TO use an AP to enter the country and cannot go back on H1, Usage of EAD invalidates your H1 status and you become an adjustee. Your lawyer is absolutely correct.
 
COS from AOS to H1B

Hi:

My attorney confirmed that AOS is not going to be afftected if you change to H1B with new employer after working on EAD with different employer..
 
I am totally confused

Thanks for the response, 140 and mereguru. But I am totally confused about "change of status". Heres my situation again:

1. Last year I worked on EAD part-time while I worked full time with current employer who applied for my H1B, but H1B took a while to get approved, but since H1B was applied for, technically I should be on H1B status only.

2. I am no longer working on EAD with part-time employer. H1B with current employer is approved, and I want to make sure my status is H1B, so that I can bing spouse on H4.

Is that possible. My lawyer says no (thats probably because my HR is pissed about my doing part time work), but I get the feeling that he is basically clueless.

Please help, this is a real and urgent situation. Any information will be greatly appreciated.

I planning to travel on AP, but travelling on AP shouldnt adversely affect my case.
 
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