H visa after denied I-140/I-485/EAD

[NF-kappaB]

Hi

does anybody know whether an H1B/H4 status which has been in place before using an EAD based on I-140/I-485 concurrent filing is still valid after I-140 and/or I-485 denial? Or is the result being out of status in such a situation?
Would be great if somebody knows about this.

Thanks

 

[TheRealCanadian]

does anybody know whether an H1B/H4 status which has been in place before using an EAD based on I-140/I-485 concurrent filing is still valid after I-140 and/or I-485 denial? Or is the result being out of status in such a situation?

If you used your EAD to do something that you couldn't have done with just the H-1/H-4, then your H status is toast and you are out of status once the adjustment is denied.

However, unless the adjustment was denied for criminal or other statutory inadmissibility, there should be no impediment to returning to your home country, getting a new visa stamp (since the old one even if unexpired is invalid) and returning, provided the conditions of the original H petition are still being met.

 

[NF-kappaB]

Thanks, RealCanadian. In the case you have decribed - going back to our home country and getting a new visa stamp based on the "old" H visas - wouldn't we be out of status not only from the time our I-140/I-485 gets denied, but even earlier? I mean back to the date from which we have used our EADs and made our H visas invalid? If that's over 6 months, I guess we would be in trouble.

 

[girishreknar]

Hi Realcanadian

Lemme pick up from there, lets say after 5 years of being in H1 status, you used your EAD to change company. Now, like you said when you go to your country get the stamping, will that be valid for 6 years or remaining 1 year?

Thanks

 

[TheRealCanadian]

wouldn't we be out of status not only from the time our I-140/I-485 gets denied, but even earlier? I mean back to the date from which we have used our EADs and made our H visas invalid?

You cannot become out of status retroactively. If you were in status on a particular date, nothing short of a frivolous or fraudulent petition can make you out of status.

 

[TheRealCanadian]

Lemme pick up from there, lets say after 5 years of being in H1 status, you used your EAD to change company. Now, like you said when you go to your country get the stamping, will that be valid for 6 years or remaining 1 year?

Very simple. The law says that the 6 year clock can only be reset by leaving the US for a year. If you have not done so, then you only get 1 year at a time, although this can be extended in 1 year increments based on AC21 and 7th year extensions.