H4, EAD and AP issue

[schnooz]

Hi

I am on an H1B visa, and so was my husband until recently. We are in the final stages of the GC (I140 approved, fingerprinting and medical done, EAD and AP received). I am maintaining H1B status.

He left his job for another which is to start 1 April, and needs to travel overseas in the next 2 weeks for his new job. On advice of our lawyers we started to apply for the H4 once he left the old job, but now that he needs to travel and the application is pending, were told this means he has abandoned the H4 and needs to come back on EAD / AP. This will be fine for him to continue working and living here but I had some questions I was hoping someone could answer:

1) If he reenters on AP, since I am still in valid H1B status, could I apply for H4 for him after he gets back (as a backup in case the I485 gets rejected?)

2) Even if he had stayed in the country till H4 approval, if he is using the EAD to work, doesn't that nullify H4 status anyway (i.e would it offer any benefit to get H4 if he is going to use EAD?)

3) If I485 is rejected and he is using his EAD, and my H1B is still valid, then can I apply at that time for H4 and will be be considered to have been "out of status"?

Thanks in advance for any info!

 

[jk0274]

Unless I'm missing something, there was probably little point in him applying for H-4 now since he is working, something he wouldn't be able to do, regardless of whether he travels or not, were he on H-4 status.

1) You could, but he would have to stop working if he wanted to maintain H-4 status. Since it appears he continues to work, there is no point now.

2) Yes, it does nullify the H-4 status.

3) You will probably have a little bit of advanced notice if your I-485 is denied (which is statistically quite unlikely since your I-140 is approved). Should that happen, he can simply leave the country and reenter on a new H-4 visa acquired abroad by virtue of your H-1b status.

 

[schnooz]

Thanks!

Thanks, very helpful response