HUSBAND USING EAD ,while Spouse on H4 status --Consequences, pls advise

[royal1]

Hello Allgurus,
I have filed my I-485, 1.5 years back when it became current for all & retrogressd later. I was not married that time & i got the EAD in Aug2007. I havent used my EAD for my employment eligibility(I-9) till now ,still i am using my H1B for my payroll & legal stay.

Q.1)I am planning to get married on April'09 & bring my spouse on H4 along with me,do you think i can switch to EAD once after me(H1 & AOS) & spouse(on H4) are here back in USA on May'09..?

Q.2) My doubt is if i start using my EAD from May'09(after bringing my spouse here), will she loose her H4 status automatically ..?if so , how can she stay here with me ..? I am gettin mixed opinions about this.

Q.3) If i switch to EAD after marriage, will my H1 also be valid simultaneously & so my wife's H4 ..? Will she be evicted out of the country then ..?

Q.4) My I-140 got approved few months back,but my H1-employer is not telling me the approval# or any refernce regarding the I-140 approval,saying that it belongs to the company.I have a good job offer now to join my client directly on EAD, so if i commit to join them on May'09,will be knowingly or unknowingly jeopardizing the status of my spouse ..?

Q.5) When will i be able to file the I-485 derivative filing for my spouse ..?
How sould i know when is the time for her derivative filing ..???

Q.6) please advise , if i can use my EAD & at the same time keep my spouse's stay valid in US pls let me know how it work..?
q.7) How will i track my priority date is current or not ..? Will i be notified ,if my PD becomes current again ..?

Appreciate your advise in this regard,

Thanks,
Rk

 

[randy_gc]

if you didn't file i485 for your wife, you need to maintain H1b status for her to keep H4 status. The moment you move new employer on EAD, you loose H1 status and she looses H4.

So move to new employer on H1. It is always better to move to new employer after i140 is approved, if the current employer withdraws i140 before approval, then you need to start the process again from begining.

you can file i485 for your spouse whenever your priority date becomes current.

 

[mmed]

Yes, as stated above, to those without current PD and their dependents can not apply for I485, the only way for them to keep their dependents in legal status is to maintain visa (or the dependent should have his/her own visa) and not use EAD till their dependents can apply for I485. By using EAD you actually put your dependents who can not apply for I485 in out of status.

 

[ginnu]

Hello Allgurus,
I have filed my I-485, 1.5 years back when it became current for all & retrogressd later. I was not married that time & i got the EAD in Aug2007. I havent used my EAD for my employment eligibility(I-9) till now ,still i am using my H1B for my payroll & legal stay.

Q.1)I am planning to get married on April'09 & bring my spouse on H4 along with me,do you think i can switch to EAD once after me(H1 & AOS) & spouse(on H4) are here back in USA on May'09..?

Q.2) My doubt is if i start using my EAD from May'09(after bringing my spouse here), will she loose her H4 status automatically ..?if so , how can she stay here with me ..? I am gettin mixed opinions about this.

Q.3) If i switch to EAD after marriage, will my H1 also be valid simultaneously & so my wife's H4 ..? Will she be evicted out of the country then ..?

Q.4) My I-140 got approved few months back,but my H1-employer is not telling me the approval# or any refernce regarding the I-140 approval,saying that it belongs to the company.I have a good job offer now to join my client directly on EAD, so if i commit to join them on May'09,will be knowingly or unknowingly jeopardizing the status of my spouse ..?

Q.5) When will i be able to file the I-485 derivative filing for my spouse ..?
How sould i know when is the time for her derivative filing ..???

Q.6) please advise , if i can use my EAD & at the same time keep my spouse's stay valid in US pls let me know how it work..?
q.7) How will i track my priority date is current or not ..? Will i be notified ,if my PD becomes current again ..?

Appreciate your advise in this regard,

Thanks,
Rk

You need to maintain H1 status and your spouse H4 status. When your PD becomes current your spouse can file I-485.
For PD related info check the visa bulletin posted by DOS.

 

[san7887]

this thing really sux as I am also in the same boat and with the prevailing conditions you never know when you might have to shift to ead to get a job and then you have to think about your spouse being on h4

 

[lprkhoj]

It is always better to move to new employer after i140 is approved, if the current employer withdraws i140 before approval, then you need to start the process again from begining.

Better, yes, but once its been 180 days since I140 was filed and I485 is pending, sponsor can't withdraw it. If its withdrawn, albeit erroneously,one may contest the decision as long as other requirements (like job profile) are maintained. So, just to avoid this hassle, its advisable not to switch jobs before I140 is approved, but if push comes to shove, one may. No need to restart the process.

 

[TheRealCanadian]

Better, yes, but once its been 180 days since I140 was filed and I485 is pending, sponsor can't withdraw it. If its withdrawn, albeit erroneously,one may contest the decision

This is incorrect. An employer can always withdraw an I-140, even if it has been approved. If the I-485 has not been filed or has been pending less than 180 days, the I-485 is denied and the GC is toast. If the I-485 has been pending for over 180 days and the I-140 is approved, an NOID is issued and the applicant has 30 or so days to provide evidence of AC21 portability.

If the I-140 has not been approved and the I-485 has been pending for over 180 days, USCIS memos indicate that portability should attach if the I-140 was approvable when filed. I wouldn't rely on that unless absolutely necessary, since that's a rather grey area.

 

[lprkhoj]

This is incorrect. An employer can always withdraw an I-140, even if it has been approved. If the I-485 has not been filed or has been pending less than 180 days, the I-485 is denied and the GC is toast.

You are mislead. Employer may withdraw I-140 but if its been pending for 180 days and other requirements are still maintained (by virtue of being employed with another employer, portability based on AC21 w/ I485 pending for 180 days), USCIS should still approve I140. Search my earlier posts on this topic with link to relevant memo.

 

[TheRealCanadian]

You are mislead. Employer may withdraw I-140 but if its been pending for 180 days and other requirements are still maintained (by virtue of being employed with another employer, portability based on AC21 w/ I485 pending for 180 days)

As you point out later in this quote, all that matters is that the I-485 has been pending for 180 days or more. How long the I-140 has been pending for is irrelevant.

USCIS should still approve I140. Search my earlier posts on this topic with link to relevant memo.

USCIS will only grant portability if the I-140 was "approvable", and was not missing required evidence. If USCIS questions the ability to pay and the alien isn't in a safe harbor (like already making the prevailing wage), or USCIS needs an educational equivalence, then they can deem the I-140 not "approvable when filed" and deny AC21 benefts. Hence the risk if the I-140 hasn't been approved.

It's not as cut and dried as you state when the I-140 isn't approved.