How to bring my wife to US if I entered using AP? (Changing status from AOS to H1?).

S

sd1975

Registered Users (C)
Hi everybody.

I'm waiting for a decision on my employment based I485. Looks like it's not gonna be any soon since my receipt date is 9/3/02.
I've got married and entered the US using AP.
So now there is no way I can bring my wife here. Is it possible to apply for a new H1B and change my status from AOS to H1B without loosing my I485 case? In this case I will be able to bring my wife on H4.
Are there any other options?

Thank you very much!

VK
 
using AP to enter the U.S. does not invalidate your H1 status. so unless you have used your EAD, and your H1 has not expired, you can bring your wife in on H4.
 
My attorney told me that at the moment I entered US with AP my status has changed (since I've got a new I94). Therefore I can't work without EAD.
Actually my visa was expired, and I filed for an extension, but haven't received my approval yet, that's why I had to use AP. So what is my situation?
 
Hi,
When you get ur h1 Approved, you can bring your wife into US.
But If ur 485 get approved before you receive h1B papers, you can bring ur wife with follow to join, i.e. you can still process CP(consular processing for your wife). it takes 9 to 12months to get GC for her . She will get GC at consulate in India. Until then she can not enter USA.

Even though you entered US on AP, Since you h1B visa Expired,
you can not work on h1B. That is what Attorney meant.
But if u file for h1B Extension, you can work on h1B instead of EAD. you can Switch bet EAD & H1B if u have done h1b Extension.

It does not mean that h1B becomes invalid when you use EAD.
you can switch between them.

-Sank
 
I did a backgroud checking of Mr. soclose. I would like to know how has your case (of bringing your wife here) been going.

I have spent quite some time on this subject and have found the following (including talking to a nice lawyer):

1) As soon as you use you AP, you are out of your H1B game.
2) In order to get back to H1B, you have to get a new H1B status (either by applying for a completely new H1B or by stamping of the old H1B, as I understood but not certain. Some helps from the gurus in the forum are very much appreciated.)

wy
 
bringing spouse

Hi,
I was able to do this successfully.
here is my chronology...
H1B had expired, changed my company using my EAD.
applied for a 'fresh' H1B with new co. through premium processing(spent out of my pocket)
went to India, got married, got H1 stamped at mumbai consulate.
wife got her H4 stamped.
came back to US using H1. wife on H4.
applied for wife's AOS.

You can bring your wife later on FTJ (follow-to-join) if you have been married before your GC gets approved. But i heard very discouraging opinions about FTJs. There is an FTJ thread, if you search the forums.
As you can see, i changed my status back to H1.
IMPORTANT:- I did apply for my AP, but did not use it. When i left US, i did not have my H1 approved. It got approved while i was abroad. My lawyer sent me my approval notice and i got my H1 stamped.
So, theoretically, i guess i did travel on AP though i did not use it as on return, i used my H1.
I guess 1 option for you is to hope your GC is delayed,
apply for an H1, go out of the country to get it stamped (Canada, Mexico ?), return using H1, etc..
P.S.:- when i applied for my H1, my company's lawyer was quite adamant that i tell it like it is to INS. Hence, in my H1 application he mentioned reason for wanting H1 - me wanting to bring spouse I was quite anguished at that time, but guess what IT WORKED.
 
thank you

Thank you guys for all your advices. Actually I have already filed I824 for my wife. That means that if my grean card gets approved they are gonna send this approval to the consulate and I'll be able to start consular process for my wife. The problem is that I don't know how long it will take to get my GC approval. You know what is going on in CSC. It may be year, or three, or five - nobody knows. I can't live here for indefinite period of time without my wife.
So I think, that in this situation it would be better to get an approval for my H1. Go back. Get visa for my wife and myself and return using this visa and bring my wife. Start adjustment of status for my wife. Do you think this scenario will work?
Anyway I'm gonna do this not earlier than september. So if I see a good progress in GC processing by that time I can drop this plan and stick with a consular processing.
One more question: do I need a special approval from INS for H4?

Thank you.
 
plan of action

i think you have got your priorities right.
No special approval is required for H4(as far as i know).
But, since you have already applied for I824, I am not sure if you can also apply for spouse H4.
check with lawyer.

Even i did not want to stay away from my wife for an indefinite period of time.
I would suggest you go ahead and get your H1 through premium processing.
You get a reply,possible approval within 15 days (i got it).
You can do it through a lawyer and be quite upfront about it in your application.

I think, afterwards going in for Consular processing, FTJ, etc is a very time-consuming,tormentful process.
For Consular processing, your wife will have to follow up with the local consulate.
In most cases, the local consulate does not allow any representation(lawyer).
So it could be tough on your spouse.

Another warning:- my consulate(bombay, India) had a mandatory requirement for wife to have her surname changed to husband's name.
You might want to check with your local consulate.

Best of luck.
 
Re: plan of action

Originally posted by soclose
i think you have got your priorities right.
No special approval is required for H4(as far as i know).
But, since you have already applied for I824, I am not sure if you can also apply for spouse H4.
check with lawyer.
Click to expand...
My lawyer tells me that nothing is possible and the only option I have is to wait untill my GC is approved.
I have applied for I824, hawever may be I just can abandon it and start adjustment of status for her here. Basically the intention of I824 is just to have BCIS to send my approval to the consulate. And that's gonna happen only after they approve my GC. Before this time there is no action on I824. So I don't understand how it can interfere with H4.

Thanks
 
Even my lawyer had said that it's not possible. Lawyers tend to be extra conservative\careful.
Having said that, i do not know your case details and don't rely on my opinion.
Even my lawyer was surprised that my H1 got approved.
There is no reason why INS shall give you an H1.
Please understand there is no guarantee you will get your H1.
You do know that there is a risk that this will all be a waste
in terms of the extra expense on getting your H1.
If you are ready for bearing that, go ahead.

CAVEAT:- I don't know how this will affect your GC process as my GC has not been approved yet.
But, i don't think i should have a problem with this as i have informed INS of my intentions all the time.
 
Originally posted by soclose
CAVEAT:- I don't know how this will affect your GC process as my GC has not been approved yet.
But, i don't think i should have a problem with this as i have informed INS of my intentions all the time.
Click to expand...
I'm sorry, what do you mean telling that you have informed INS of my intentions all the time?
 
I mean that in my H1 application, my lawyer mentioned the purpose of me asking for an H1, viz. to enable me to get my wife back on H4. My H1 application was accompanied by my EAD, copies of AOS RD, copy of letter informing about change of employment regarding AOS application, etc.
Thus, i was requesting INS to give me some consideration to enable me to bring my future wife here( i was not even married then). Of course, all the other paraphrenalia of the H1 application also accompanied my H1 application.

This is the strategy which worked for me.
 
In my situation I'm waiting for an H1 approval. It should come soon. It is just an extension of an expired visa. I filed for it before marriage and before I left the country and used my AP. Basically I used my AP because my approval wasn't ready yet, but i didn't have an intention to change my status. Do you think I can use the approval that I'm waiting for, or I have to file for a another one?

Thanks.
 
Hmm..
I don't see why you cannot.
I know, there is a difference of opinion as to whether you can change your status to H1, after you are on AOS. (search the web for some links)
But i have done it.

Will you have to travel outside the country to get your H1 stamped ?

You are least likely to face any problem in
a) getting H1 stamped (especially using drop box facility)
b) getting back to the country on H1.
c) your wife getting H4
d) your wife coming here on H4

The most important worry for you would be ....if your GC gets approved. In that case your H1 is immediately invalid.
I think you should be fine otherwise.
 
Foggy

See this issue has beenn discused to death. It has been roaming around for a long time " Can I bring my wife after I used my AP??"


I have done lot of research, and also got information from some attorney directly. Those are the openions from diffrent source

1) Using AP nullify your H1B status. This is true according to the publication made by US department of Justice around middle of 2000. I have that release. You will also got it from some attorney's web site.

2) Some people say " using AP does not nullify youe H1B status if you keep continuing workihng for the same H1B sponsoring employer." I have not seen any proof in any INS/DS/USDJ release about this.

3) Some says "No matter what using AP nullify your H1B"



Whatever it is, you can always reinstate your H1B by going outside the country and get a new H1B stamp. There should not be any problem. Lot of people have done that. However, if you come using AP, and send you wife alone to get H4, there is potential chance that it will get denied. They always check in their system whether you are still in H1 or not now a days.

I know two cases where wife went for inteview and husband is in USA entered using AP. Consular asked that ask your husband to come and apply for H1 visa together or come on immigrant visa when your husband get PR. This is in Bangladesh. I dont know about INDIA.


One thing I am pretty much clear is once you use Payrol, you are a payrole. Payrole cannot work on H1. However, you can always reinstate by going out and enter on H1 visa.

"Using AP nullify H1B" this statement has been made clearly by USDJ in a release what I read from immihelp.com once. However, some people say this rule has been reversed somewhere in 2001, but unable to show any authentification.


Your best bet would be apply for H1/H4 visa together with your wife at consulate once you get your new H1B.


Good Luck.
 
Last edited by a moderator:
my case is similar too

Hi guys,

My situation is exactly same..here is my case:

My 485 filing was done in Dec 2001 and I have been working on H1 from day one with my employer. My company had applied for my H1 extesnion which was expiring in Oct 2002. Last year I had to rush to India for personal reasons in Sept 02 & since I did not have an H1 while coming back I used my AP (Advance Parole). When I cam back in Jan 03, I saw H1 extension in my mail. Since I was working with same employer I did not use my EAD. I am now planning to switch to a new employer since my present companys situation is bad & they have also advised to me to look for a new job. They have promised that they will continue my GC process.

Now my question is Can I transfer my H1 to another employer or
do I need to work on EAD since I used my AP. I know I can easily work on EAD and avoid all the hassels but the reason I dont want to do that is :
I am still single and the moment I work on EAD I cannot bring my spouse on H4. So can I transfer my H1 to a new company after using my AP or WILL i need to work on EAD only..? Is there a way to bring my spouse if I work on EAD otherwise.

thanks
 
My attorney advised me that I can use my H-1B as long as I keep working for the same employer after entering with AP.
After reading this thread though I am very confused....not sure what to do because I don't want to goto us consulate to stamp my H-1B as they are rejecting lot of H-1B 's ...i heard a rumor and I don't want to take any chances
 
Hi, folks,

Even though there are confusions about using AP, but somethings are quite sure. For example, once you use AP, you loose you H status. However, you can go back to H1. But what I do not understand is how to go back to H1.

There were documents issued by INS on the internet specifically on this top in May and March of 2001. The search link is "Dual Intent Memorandum".

Be specific, I would like to know if I can still use my original H1 approval notice (not a newly applied (transfered) one or an extension) to get back to H1 from AP. And how to do it? Can I just go to a consulate and get a stamp? (BTW, I never stamped before). Appreciate the information from the ones who have experienced this.

wy
 
Sahin

Folks, dont quote me on this, as I am not sure. However, let me tell you what I have learnt from attorney and consulate. They say you can even go back to H1 again using the same H1. You dont have to have the extension. But, finds folks who have done this.
This is not the time to take chance.
 
You must log in or register to reply here.
Top