H1 to H4 while on AOS as derivative..

[harsha.vedala]

I was on H1B from 08/2002 to 12/2007
Got EAD in 2007 as derivative and started using EAD from 01/2008
my 6th year of H1B is going to expire this month and not eligile for H1B as I dont have I-140 approved or Labor filed.

My question is, as my spouse (Primary for GC) is applying for her 7th year (3YR) extention. Is it safe to add myself with her H1 renewal for me to get H4? I was never on H4 but just as a back-up, can I apply for H4 even thoough I am using EAD as deriviative?

Thank you so much for your suggestions.

 

[fromnaija]

Previously you couldn't do that since you've maxed out your 6 year limit on H visa. But since H1 and H4 were decoupled your time on H1 would not count against your getting H4 at this time. So, I guess it is safe to say you could apply for H4 as derivative on your spouse's H1 application.

 

[vj66321]

No H4 needed

you have filed your I-485 along with your spouse's, so you dont need a visa to stay in the US as long as the I-485 is pending.

Since you started using your EAD, your H4 even if you get one will be voided.

you will need an AP to enter US if you travel out of US.

 

[mmed]

it safe to add myself with her H1 renewal for me to get H4? I was never on H4 but just as a back-up, can I apply for H4 even thoough I am using EAD as deriviative?

Why you do that. You are in a very good status with EAD to work, AP to travel and come back if you will. BAckup of what? In case your I-485 get denied? your spouse already finished the maximum time for the H and the only hope for both of you is your pending I-485 to get approved or at least to stay in the pending status.