I-485 filing with spouse on H1B status

M

Mahesh Kolhe

New Member
My priority date became current and i am in the process of filing the I-485.
My spouse received her H1B in April 2001 ,but the employer has not given any offer letter / pay as she has not landed a project yet. She got her SSN based on the H1B petition. She currently has H4 status on the Visa .

Question : Should I apply for I-485 stating her case as H4 or should i state her as H1B ?
 
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If your spouce hasn\'t yet started on the job then you should file with her status being on H4 as of now. Just getting a i-797 approval notice doesn\'t change the status of your spouce until your spouce starts on the job.
 
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I am not too sure about it. It varies from case to case. I was on EAD after my masters. I got H1 after 4 months and immidiately my EAD was terminated. Isn\'t H1 should be filed with an assumption that employer has a job available for you? If so, then it does not matter whether you are working on a project or sitting in the office. Please check some other websites and confirm.
 
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Thanks a lot for the response. But what about the SEN she got based on the H1B ? I will be applying for her as H4 status with her TIN no ?
Is it OD if she uses her SEN no after she gets AD ?

Responses will be greatly appreciated .
 
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Your EAD after masters was a different case. You were then allowed to join an employer and then have your employer apply for H1. When your employer applied for H1, they had to mention that you were working with them on your EAD. That case is a little different as you were allowed to start working even before approval of your H1 and the H1 application was for an existing employee rather than a prospective employee.

For H4 to H1 transfer, however, the H1 application is for a prospective employee not an existing employee. And in that case, the status does not change until the prospective employee actually joins the payroll.

I have gone through your situation and my wife has gone through the other situation.
 
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You can very well use her SSN rather than TIN. Nothing stops you in doing that. In many states, SSN is required even for the drivers licences. So, it is very common to have SSN on H4 status.
 
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Thanks taka-digi. Was your situation also similar ?

My wifes SSN card says "Valid for Work" . So, isn\'t it better to put her TIN instead of SSN ? Wouldnt it be a problem if INS checks the SSN as it says "Valid for Work" and the status is shown as H4 ?
 
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Yes, my case was similar. The only difference is that my wife\'s SSN card doesn\'t say \'Valid for work\' instead it says \'Valid for work only with INS Authorization\'. My wife got her H1 approved but never joined the company due to pregnancy. In the mean time my i-140 got approved and we filed for i-485. We filed her case in H4 status. That is what my attorneys suggested. And just an FYI, my attorneys are one of the best known in the country - "Fragomen, Del Rey...". So, I do respect their suggestion and guidance.
 
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