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H4/ead
- Thread starter kutti80
- Start date
Want GC Soon
Registered Users (C)
kutti80 said:If my spouse is on H4, then start working on EAD, and loses a job after sometime, is he on a valid status at that time. Can he switch back to H4 or need a H1 or another VISA?
Help me here.
A spouse on H4 can start working on EAD and once he uses EAD, needs to use AP to reenter US.
I dont think that he can transfer to H4 since its a non-immigrant status again. When working on EAD, he loses his job he is not counted towards out of status since his EAD depends on your Green Card Process(since you are the primary applicant).
Hope this helps. PM me, if you need more information.
Pareshan4GC
Registered Users (C)
This is a issue which has not been understood or explained well. I am in a similar situation (infact worse). I am expecting my and my wifes EAD soon. Our 6 yrs of H1/H4 visa get over in a few days. I will work on H1 and my company has already applied for our H1 extension, but my wife will work in the US on the EAD.
What happens if the I140 is rejected?
How can she legally reside in the US if our I140 is rejected?
I also did a search on the keywords "EAD H4" on this forum. Got some good results, also found a lot of people who were in the same boat as me ... but very conflicting answers.
What happens if the I140 is rejected?
How can she legally reside in the US if our I140 is rejected?
I also did a search on the keywords "EAD H4" on this forum. Got some good results, also found a lot of people who were in the same boat as me ... but very conflicting answers.
Last edited by a moderator:
Pareshan4GC said:This is a issue which has not been understood or explained well. I am in a similar situation (infact worse). I am expecting my and my wifes EAD soon. Our 6 yrs of H1/H4 visa get over in a few days. I will work on H1 and my company has already applied for our H1 extension, but my wife will work in the US on the EAD.
What happens if the I140 is rejected?
How can she legally reside in the US if our I140 is rejected?
I also did a search on the keywords "EAD H4" on this forum. Got some good results, also found a lot of people who were in the same boat as me ... but very conflicting answers.
thanks WANT_GC_SOON and Pareshan4GC, for your inputs. Yes, this is also another issue which I've been thinking seriously. Once a 140 is rejected what will happen to his status. Can he still be here legally.
GC_GoneCase
Registered Users (C)
I ran into same issue sometime back. I was told by leading attornyes on immigration that if my spouse uses EAD to work, H4 would be no longer valid and only status left would be AOS. If 140 is denied, EAD would also be denied and virtually there is no status left after that as the spouse was earlier on AOS.
I was told the only way to get back to status is go back to your original country, get H4 visa stamped and re - enter on new status.
AP cannot be used as it also needs EAD at point of entry to US, which would have been cancelled.
I hope it helps. My comments are based on what I was told by attorneys and I decided against using EAD for spouse. You may like to check with your attorney.
I was told the only way to get back to status is go back to your original country, get H4 visa stamped and re - enter on new status.
AP cannot be used as it also needs EAD at point of entry to US, which would have been cancelled.
I hope it helps. My comments are based on what I was told by attorneys and I decided against using EAD for spouse. You may like to check with your attorney.
kutti80 said:thanks WANT_GC_SOON and Pareshan4GC, for your inputs. Yes, this is also another issue which I've been thinking seriously. Once a 140 is rejected what will happen to his status. Can he still be here legally.
Want GC Soon
Registered Users (C)
kutti80 said:thanks WANT_GC_SOON and Pareshan4GC, for your inputs. Yes, this is also another issue which I've been thinking seriously. Once a 140 is rejected what will happen to his status. Can he still be here legally.
The thing is that once 140 gets rejected, the guy is safe as he is still working on H1B but wife gets out of status since she has already started working on EAD.
Now, she has to file for H4 again and leave US and get the visa stamped again from the country of origin, if she has any time left on H4 visa. If 6 years has already expired, then she need to stay back in India for one year and then apply for H4 visa again. I know it sucks, but this is how it works..
Want GC Soon said:The thing is that once 140 gets rejected, the guy is safe as he is still working on H1B but wife gets out of status since she has already started working on EAD.
Now, she has to file for H4 again and leave US and get the visa stamped again from the country of origin, if she has any time left on H4 visa. If 6 years has already expired, then she need to stay back in India for one year and then apply for H4 visa again. I know it sucks, but this is how it works..
Thanks you. This really helps a lot.
Pareshan4GC
Registered Users (C)
Want GC Soon said:The thing is that once 140 gets rejected, the guy is safe as he is still working on H1B but wife gets out of status since she has already started working on EAD.
Now, she has to file for H4 again and leave US and get the visa stamped again from the country of origin, if she has any time left on H4 visa. If 6 years has already expired, then she need to stay back in India for one year and then apply for H4 visa again. I know it sucks, but this is how it works..
That sucks. That really sucks. My wife is making all grand plans to work. She is really happy and I hate to inform her that it can be very risky to work on EAD specially because our 6 yrs of H visa are almost over.
Here is the url of my thread http://immigrationportal.com/showthread.php?t=145309
WantGCSoon,
On a different note, you could be wrong because check this other link ...
http://immigrationportal.com/showthread.php?t=143707&highlight=ead+h4
From Sheela Murthys chat session:
Chat User : A spouse on H-4 wants to use his / her EAD while I-140 is pending. Will s/he be out of status if the I-140 gets denied and can s/he come back to H-4 again?
Attorney Murthy : As long as the H-4 status is valid, a person may maintain both the H-4 and the I-485 pending status. If the I-140 gets denied, the person will be eligible to revert to the H-4 status as long as the I-94 card has not yet expired. If the H-4 status is about to expire, the person should either file an extension or, upon the I-140 denial, should plan on traveling abroad and applying for the H-4 visa stamp at the consulate and reentering on H-4 status in order to live legally in the U.S. In such cases, it may require the person who was not on any status even for a single day to mention that s/he was "unlawfully present" in the U.S. on the visa application form at the consulate. The dual intent doctrine under law allows one to change between the H status and the I-485 pending status, and both may be valid simultaneously, so it is safest to maintain both whenever possible. These issues have been crystallized in the March 2000 and May 2000 Legacy INS Memos and may be reviewed on MurthyDotCom.
http://www.murthy.com/chatlogs/chat0517.html
Trust me, all this is very confusing. I dont even trust the attorneys. They could goof up and we would have to pay the price for their lack of knowledge.
Want GC Soon
Registered Users (C)
Pareshan4GC said:That sucks. That really sucks. My wife is making all grand plans to work. She is really happy and I hate to inform her that it can be very risky to work on EAD specially because our 6 yrs of H visa are almost over.
Here is the url of my thread http://immigrationportal.com/showthread.php?t=145309
WantGCSoon,
On a different note, you could be wrong because check this other link ...
http://immigrationportal.com/showthread.php?t=143707&highlight=ead+h4
From Sheela Murthys chat session:
Chat User : A spouse on H-4 wants to use his / her EAD while I-140 is pending. Will s/he be out of status if the I-140 gets denied and can s/he come back to H-4 again?
Attorney Murthy : As long as the H-4 status is valid, a person may maintain both the H-4 and the I-485 pending status. If the I-140 gets denied, the person will be eligible to revert to the H-4 status as long as the I-94 card has not yet expired. If the H-4 status is about to expire, the person should either file an extension or, upon the I-140 denial, should plan on traveling abroad and applying for the H-4 visa stamp at the consulate and reentering on H-4 status in order to live legally in the U.S. In such cases, it may require the person who was not on any status even for a single day to mention that s/he was "unlawfully present" in the U.S. on the visa application form at the consulate. The dual intent doctrine under law allows one to change between the H status and the I-485 pending status, and both may be valid simultaneously, so it is safest to maintain both whenever possible. These issues have been crystallized in the March 2000 and May 2000 Legacy INS Memos and may be reviewed on MurthyDotCom.
http://www.murthy.com/chatlogs/chat0517.html
Trust me, all this is very confusing. I dont even trust the attorneys. They could goof up and we would have to pay the price for their lack of knowledge.
In the transcript of Murthy, she said that a person can have H4 and 485 running parallel at the same time, but she didnt mention if a person starts working on EAD, then 140 rejects, what would be her status.
Murthy also confirms that she needs to travel outside US and get the new visa stamped and reenter USA.
Want GC Soon said:In the transcript of Murthy, she said that a person can have H4 and 485 running parallel at the same time, but she didnt mention if a person starts working on EAD, then 140 rejects, what would be her status.
Murthy also confirms that she needs to travel outside US and get the new visa stamped and reenter USA.
I believe, it should be safe as long as we have the I-140 approval. That seems to be the best option for H4s having EAD.
LC_Virginia
Registered Users (C)
What if I140 is approved, but I-485 gets denied ?
Is that not a possibility ? What happens then to the status of the dependent working on EAD?
Is that not a possibility ? What happens then to the status of the dependent working on EAD?
Want GC Soon
Registered Users (C)
LC_Virginia said:What if I140 is approved, but I-485 gets denied ?
Is that not a possibility ? What happens then to the status of the dependent working on EAD?
I havent seen 485 being rejected in most cases when 140 gets approved. All that they get is an RFE for paystubs/W2. Other than that, it should be fine.
If you think that 485 gets rejected after 140 gets approved, then you might as well stay at home until you get your GC on hand before you can start working.
Pareshan4GC
Registered Users (C)
My communication with my attorney should clear all doubts ...
To understand my situation go to this link ...
http://immigrationportal.com/showthread.php?t=145309
This communication took place between me (H1B holder) and my attorney. This communication should clear all doubts regarding H4 to EAD to H4
If the I140 or I485 (applied by COMPANY_B) gets rejected...
Q: Does she have to go to India for H4 stamping or can she just revert back to H4 status without going outside the country?
A: The mere fact that she files the I-485, I-131 and I-765 does not in any way impact her claim on H4 status, nor does the approval of the I-131 or I-765. It is the use of the advance parole from the I-131 approval or the EAD from the I-765 approval that automatically moves her from H4 status to pending I-485 status. If she used either of those documents and then her I-485 is later denied, then she would lose the I-485 claim to remain here and the advance parole and EAD would be terminated too. Assuming that you continued to maintain H1B status, she could herself regain H4 status. You should assume that she would depart the US, apply for the H4 at a consulate, and then return after it is granted. This could be done back home, but probably could also be done in Mexico or Canada.
Q: If she has to go to India, can the U.S consulate refuse to grant her H4 visa because her 6 yrs of H4 are already over? Can the consulate ask her to stay away from the U.S for a year before granting her H4 visa?
A: Note: if you continue to enjoy H1B status in annual extensions beyond the 6th year; otherwise yes.
Q: What if she is working on EAD (and she doesn’t have a valid H4 status anymore) and the I140 gets rejected. What happens then?
E.g. the extension COMPANY_A recently applied is good for a year. Assuming it gets over on June-30-2005. Sometime before then, COMPANY_A will again apply for my (and my daughters) H visa extension. Should we also apply for my wife’s H4 visa extension though she is working on EAD? If not then she will not have a backup H4 and under those circumstances what happens if the I140/I485 gets rejected?
A: See above. Note that she does not need an H4 extension to apply for the H4 abroad. What she needs is your H1B to remain valid. Therefore, your H1B is effectively her backup route to the H4. BTW, technically it is the I-485 denial that impacts her, not the I-140.
To understand my situation go to this link ...
http://immigrationportal.com/showthread.php?t=145309
This communication took place between me (H1B holder) and my attorney. This communication should clear all doubts regarding H4 to EAD to H4
If the I140 or I485 (applied by COMPANY_B) gets rejected...
Q: Does she have to go to India for H4 stamping or can she just revert back to H4 status without going outside the country?
A: The mere fact that she files the I-485, I-131 and I-765 does not in any way impact her claim on H4 status, nor does the approval of the I-131 or I-765. It is the use of the advance parole from the I-131 approval or the EAD from the I-765 approval that automatically moves her from H4 status to pending I-485 status. If she used either of those documents and then her I-485 is later denied, then she would lose the I-485 claim to remain here and the advance parole and EAD would be terminated too. Assuming that you continued to maintain H1B status, she could herself regain H4 status. You should assume that she would depart the US, apply for the H4 at a consulate, and then return after it is granted. This could be done back home, but probably could also be done in Mexico or Canada.
Q: If she has to go to India, can the U.S consulate refuse to grant her H4 visa because her 6 yrs of H4 are already over? Can the consulate ask her to stay away from the U.S for a year before granting her H4 visa?
A: Note: if you continue to enjoy H1B status in annual extensions beyond the 6th year; otherwise yes.
Q: What if she is working on EAD (and she doesn’t have a valid H4 status anymore) and the I140 gets rejected. What happens then?
E.g. the extension COMPANY_A recently applied is good for a year. Assuming it gets over on June-30-2005. Sometime before then, COMPANY_A will again apply for my (and my daughters) H visa extension. Should we also apply for my wife’s H4 visa extension though she is working on EAD? If not then she will not have a backup H4 and under those circumstances what happens if the I140/I485 gets rejected?
A: See above. Note that she does not need an H4 extension to apply for the H4 abroad. What she needs is your H1B to remain valid. Therefore, your H1B is effectively her backup route to the H4. BTW, technically it is the I-485 denial that impacts her, not the I-140.
Con_File_Feb
Registered Users (C)
This brings some confusion, there are some threads and discussion before that using EAD will invalidate the H4 status, but not by using AP.
USING AP DOES NOT INVALIDATE THE H4 STATUS, IS THAT CORRECT ????
USING AP DOES NOT INVALIDATE THE H4 STATUS, IS THAT CORRECT ????
Pareshan4GC said:To understand my situation go to this link ...
http://immigrationportal.com/showthread.php?t=145309
This communication took place between me (H1B holder) and my attorney. This communication should clear all doubts regarding H4 to EAD to H4
If the I140 or I485 (applied by COMPANY_B) gets rejected...
Q: Does she have to go to India for H4 stamping or can she just revert back to H4 status without going outside the country?
A: The mere fact that she files the I-485, I-131 and I-765 does not in any way impact her claim on H4 status, nor does the approval of the I-131 or I-765. It is the use of the advance parole from the I-131 approval or the EAD from the I-765 approval that automatically moves her from H4 status to pending I-485 status. If she used either of those documents and then her I-485 is later denied, then she would lose the I-485 claim to remain here and the advance parole and EAD would be terminated too. Assuming that you continued to maintain H1B status, she could herself regain H4 status. You should assume that she would depart the US, apply for the H4 at a consulate, and then return after it is granted. This could be done back home, but probably could also be done in Mexico or Canada.
Q: If she has to go to India, can the U.S consulate refuse to grant her H4 visa because her 6 yrs of H4 are already over? Can the consulate ask her to stay away from the U.S for a year before granting her H4 visa?
A: Note: if you continue to enjoy H1B status in annual extensions beyond the 6th year; otherwise yes.
Q: What if she is working on EAD (and she doesn’t have a valid H4 status anymore) and the I140 gets rejected. What happens then?
E.g. the extension COMPANY_A recently applied is good for a year. Assuming it gets over on June-30-2005. Sometime before then, COMPANY_A will again apply for my (and my daughters) H visa extension. Should we also apply for my wife’s H4 visa extension though she is working on EAD? If not then she will not have a backup H4 and under those circumstances what happens if the I140/I485 gets rejected?
A: See above. Note that she does not need an H4 extension to apply for the H4 abroad. What she needs is your H1B to remain valid. Therefore, your H1B is effectively her backup route to the H4. BTW, technically it is the I-485 denial that impacts her, not the I-140.
Con_File_Feb
Registered Users (C)
Hi Pareshan4GC,
When you said use of AP will invalidate the H4 status, I was confused and posted this question to group and here are the answers.
http://boards.immigrationportal.com/showthread.php?t=146458
When you said use of AP will invalidate the H4 status, I was confused and posted this question to group and here are the answers.
http://boards.immigrationportal.com/showthread.php?t=146458
Q: Does she have to go to India for H4 stamping or can she just revert back to H4 status without going outside the country?
A: The mere fact that she files the I-485, I-131 and I-765 does not in any way impact her claim on H4 status, nor does the approval of the I-131 or I-765. It is the use of the advance parole from the I-131 approval or the EAD from the I-765 approval that automatically moves her from H4 status to pending I-485 status. If she used either of those documents and then her I-485 is later denied, then she would lose the I-485 claim to remain here and the advance parole and EAD would be terminated too. Assuming that you continued to maintain H1B status, she could herself regain H4 status. You should assume that she would depart the US, apply for the H4 at a consulate, and then return after it is granted. This could be done back home, but probably could also be done in Mexico or Canada.
Pareshan4GC
Registered Users (C)
I believe my attorney
I believe, what my attorney has said is true. All he is saying is that using the EAD or AP invalidates the H4 status (and the current status becomes the AOS status) and if you want to come back on H4, then you have to go outside the country and come back in using the H1 visa of the primary H visa holder.
If you dont think this is not true then what happens if the I485 of the AP or EAD user is rejected? Do they just go back to H4 without going outside the country (or without a new H4 stamping)?
I believe, what my attorney has said is true. All he is saying is that using the EAD or AP invalidates the H4 status (and the current status becomes the AOS status) and if you want to come back on H4, then you have to go outside the country and come back in using the H1 visa of the primary H visa holder.
If you dont think this is not true then what happens if the I485 of the AP or EAD user is rejected? Do they just go back to H4 without going outside the country (or without a new H4 stamping)?
See Inline...
Pareshan4GC said:I believe, what my attorney has said is true. All he is saying is that using the EAD or AP invalidates the H4 status (and the current status becomes the AOS status) and if you want to come back on H4, then you have to go outside the country and come back in using the H1 visa of the primary H visa holder.
... Your attorney may believe that and you are free to follow him/her. But you don’t need to go out of US to extend/maintain H/L status after using "Advance Parole". Check memo (section-3) from USCIS at following link:
http://shusterman.com/cronin51600.html
If you dont think this is not true then what happens if the I485 of the AP or EAD user is rejected? Do they just go back to H4 without going outside the country (or without a new H4 stamping)?
... If I-485 is rejected for some reason, person will go back to H/L status (from dual status).