How can H4 maintain legal status after using EAD?

G

GCIsTortoise

Registered Users (C)
Hi guru,

As per my laywer, H4 holder can't maintain/extend H4 status after using EAD. What if, in case, I-485 got denied, how can H4 holder maintian his/her legal status? Can he/she convert back to H4 status without going outside country to obtain H4 visa if main H1B is still valid?

thanks,
 
GCIsTortoise said:
What if, in case, I-485 got denied, how can H4 holder maintian his/her legal status? Can he/she convert back to H4 status without going outside country to obtain H4 visa if main H1B is still valid?
Click to expand...

Would probably need to leave the country, get a new stamp, and re-enter.
 
GCIsTortoise said:
Hi guru,

As per my laywer, H4 holder can't maintain/extend H4 status after using EAD. What if, in case, I-485 got denied, how can H4 holder maintian his/her legal status? Can he/she convert back to H4 status without going outside country to obtain H4 visa if main H1B is still valid?

thanks,
Click to expand...
Remember, EAD is based on pending I-485[Adjustment of Status - AOS].

As soon as u file I-485 your status is automatically considered as AOS. I believe H1B holders can still transfer their visa if they havent used EAD[they are still considered as AOS category]. Since H4 is not transferred "directly" I doubt that such H4 status exists after filing AOS. Gurus any comments?
 
fast_gc_seeker said:
Since H4 is not transferred "directly" I doubt that such H4 status exists after filing AOS. Gurus any comments?
Click to expand...

Of course it exists - the H-4 has the same dual-intent protections as the H-1B. The L-2 has the same as the L-1. My wife NEVER used AP, just entered the US after requesting H-4 status.
 
TheRealCanadian said:
Would probably need to leave the country, get a new stamp, and re-enter.
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I agree with TheRealCanadian
Your wife would have to most likely leave the country, get a H4 stamp and enter on that to "regain" H4 status.

But don't worry too much -- denial of 485 is a very rare thing .... and you always have an appeal.
 
max2k1 said:
I agree with TheRealCanadian
Your wife would have to most likely leave the country, get a H4 stamp and enter on that to "regain" H4 status.

But don't worry too much -- denial of 485 is a very rare thing .... and you always have an appeal.
Click to expand...

max2k1,

can you clarify my doubt?
Here is the scenario
Worked on H1 from company A ( A is the H1 Sponsor)
Applied for GC from company B (B also applied for H1). After got the EAD, started working for B on EAD, quitting A. get the new H1 (from B) stamped from home country. But never worked on H1 sponsored by B.

In this scenario, if I485 deny, does the person need to leave the country?
or can use the H1 which is already stamped?
does the person still need to leave the country and get the H1 stamped again? Please clarify

Thanks
 
y.o.u said:
max2k1,

can you clarify my doubt?
Here is the scenario
Worked on H1 from company A ( A is the H1 Sponsor)
Applied for GC from company B (B also applied for H1). After got the EAD, started working for B on EAD, quitting A. get the new H1 (from B) stamped from home country. But never worked on H1 sponsored by B.

In this scenario, if I485 deny, does the person need to leave the country?
or can use the H1 which is already stamped?
does the person still need to leave the country and get the H1 stamped again? Please clarify

Thanks
Click to expand...
Why do you think your 485 is going to be denied ??

In any case, if you are currently maintaining H status, you don't have to leave the country if your 485 gets denied - you can remain on H status and get it extended as usual.
 
Thanks guys,

Two more questions:

1. If H1b holder reentry with AP and change job with H1b transfer by invoking AC21, the dependant EAD (H4) holder doesn't need to transfer, just leave as it is, right?

2. How about kids with H4, are they still in H4 or AOS?
 
YOu can get H1 and H4 after using EAD. Until you maintain legal status you will get extension. You should apply for h1 and H4 before you receive your denial letter. This is a new rule which came out on May12th 2005
 
Thanks, do you have this new rule link?

ChinnaKmm said:
YOu can get H1 and H4 after using EAD. Until you maintain legal status you will get extension. You should apply for h1 and H4 before you receive your denial letter. This is a new rule which came out on May12th 2005
Click to expand...
 
Still feel confused. Here is a section copied/pasted from Fragomen:

Last revised June 2005
Advance Parole

If you are an applicant for adjustment of status to permanent residence, you must in some cases obtain advance permission to travel – known as advance parole – in order to leave the U.S. while your adjustment application is pending. If you already have a valid H-1B, H-4, L-1A, L-1B, or L-2 visa, you may reenter the United States on that visa, without the need for an advance parole. Note, though, that the policies concerning H-4 and L-2 nonimmigrant family members who have been granted and used employment authorization as applicants for adjustment of status are unresolved; until future guidance is received, individuals in these statuses who have worked in the United States should proceed cautiously, and obtain and use an advance parole for reentry to the United States. Fragomen will continue to work with Department of Homeland Security officials to obtain resolution on this issue.

That is to say, the H4 holder has undefined status after using AP and EAD. Am I right?
 
TheRealCanadian said:
After using the EAD, I would assume that the H-4 is toast.
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What about after using AP? I am on H4 and I want to keep my H4/H1 status,
up to 485 gets approve.

If I uses AP to re-enter I'm I going to loose the H4/H1?
Can I extend the H4/H1 after coming back?
 
lustra said:
What about after using AP? I am on H4 and I want to keep my H4/H1 status, up to 485 gets approve. If I uses AP to re-enter I'm I going to loose the H4/H1? Can I extend the H4/H1 after coming back?
Click to expand...

Well, this is a grey area. The Cronin memorandum of 1997 seems to indicate that if you use AP to enter but after that behave like you're on H-1 and do nothing to violate H-1 status, then you can extend that stauts and act like you used the H to enter. I would assume that extends to the H-4 as well. Basically, if an H-4 holder uses AP to enter but never uses the EAD to work and does nothing to violate H-4 status, then maybe this status can be maintained.

To be honest, this is uncharted waters so your mileage may vary, but I can see it being possible. Really, the main thing is to ensure the I-485 is approved. Once the I-140 is approved and 180 days have passed, it's not too difficult.
 
Thank you, TheRealCanadian.

If I do H1B transfer and AC21, what should I do with my wife status? She uses EAD now. It seems her H4 is void. Leave it as EAD/AOS?
 
GCIsTortoise said:
Thank you, TheRealCanadian.

If I do H1B transfer and AC21, what should I do with my wife status? She uses EAD now. It seems her H4 is void. Leave it as EAD/AOS?
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File for her H4 extension. My wife used EAD and got H4 extension approval without any problem. In the extension application we mentioned that she is working on EAD.
 
TheRealCanadian said:
Well, this is a grey area. The Cronin memorandum of 1997 seems to indicate that if you use AP to enter but after that behave like you're on H-1 and do nothing to violate H-1 status, then you can extend that stauts and act like you used the H to enter. I would assume that extends to the H-4 as well. Basically, if an H-4 holder uses AP to enter but never uses the EAD to work and does nothing to violate H-4 status, then maybe this status can be maintained.

To be honest, this is uncharted waters so your mileage may vary, but I can see it being possible. Really, the main thing is to ensure the I-485 is approved. Once the I-140 is approved and 180 days have passed, it's not too difficult.
Click to expand...

TheRealCanadian,

Thanks for your replay, and I have one more doubt:
What is the effect on H1 and H4 status If 485 approve?
If deniey?????? Can we use MTR after using AP?
Can WE reener with using AP?
H4 is not going to use EAD.Planing to use AP only.
Thanks in Advance
__________________
 
EAD and H4 to F1 status

Hello people

I need a help. My wife is on H4. She applied for transfer to F1 a month ago.
But i got my Labor Cert today. If we apply for I140+AOS concurrently, will
that automatically cancel the applciation for change of her status to F1 ?

That is good. 'coz we are applying for EAD+AOS at the same time. Or will
our AOS applciation have any issues because of her F1-VISA pending aplciation ?

Thanks for the replies
 
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