Is my family out of status ?? please respond.

A

aks999

Registered Users (C)
Hi All,

Till march of 03 I was with company A and my wife and son were on company A's H4 valid till March 2005. In March 2003 I switched to company B and got my new H1 done, assuming wife and son dont have to apply a new H4 as their H4s are valid till march 05.
Later with company B got into Green Card process. Now we are waiting for both I-140 and I-485 approvals. We got our EADs approved.

Now the questions.
1. When I moved from company A to company B is it required to apply for new H4s for wife and son with the new company.

2. My wife got EAD now. Can i assume she is out of the H4 issue now. She is not working.

3. What is my sons status. is he out of status?? If not do i need to do anything in March 2005 to renew his H4. His I-485 application is also pending.

Thanks for taking your time to read this long note.
Gurus...Please respond.

aks
 
1. When I moved from company A to company B is it required to apply for new H4s for wife and son with the new company.

-- You don't need to apply new H-4s for them as long as they have valid visas or valid approvals which you said they have until 2005.

2. My wife got EAD now. Can i assume she is out of the H4 issue now. She is not working.
-- Your wife is not out of H-4 if she doesn't use EAD even if she uses EAD and you don't she can fall back on her H-4 status on basis of you being valid H-1 status.

3. What is my sons status. is he out of status?? If not do i need to do anything in March 2005 to renew his H4. His I-485 application is also pending.
-- No one is out of status, you can extend their visas on the basis of extension of your H-1 visa, on the other hand now you have filed I-485, everyone will be in status until you don't get a decision on I-485.

So at this point everything is as it was before.
 
Thank You PremChopra.
I was little worried. Now that i know everything is ok, i'm allset.

aks
 
I am not too sure about PremChopra's response.

Although he may be right that you don't need to renew her "visa stamp", I still think you should transfer the H4...Maybe some legal eagle can clarify.
 
Originally posted by WheresMahGreen
Although he may be right that you don't need to renew her "visa stamp", I still think you should transfer the H4...Maybe some legal eagle can clarify.
Click to expand...

Who would you transfer the H-4 to? H-4 status is owned by the dependent, not the H-1 holder's employer. So long as she is the dependent of an alien maintaining valid H-1 status, she retains H-4 status no matter who the H-1 sponsor is.

Once she or her husband uses the EAD to work, her H-4 status goes poof.
 
Folks, wait a minute! Don't state things if you are not sure!!

aks999,

When you changed H1 in 3/2003, you had to do a H4 transfer for your wife and kids also using I-539. Yes, they do have the visa stamp till 3/2005 and they don't need a new stamp until then. But they MUST have their H4s transferred along with your H1. The good news is that, they would have been eligible to travel with the old H4 stamp and the new H4 approval notice (if they had transferred).

You are in a tough situation and would need legal help to convince the CIS of their legal status.

Using/having EAD is ok but the question on status from 3/2003 until now could arise.

Consult with an attorney ASAP. You may have to pay $1000 each for them.

Good Luck!
 
TRC

Upstate_NY basically wrote what I had in mind. Since I didnt have any direct experience in dealing with H4, I wasn't too sure but I have heard of this general procedure before.

As for using EAD, again, I am not too sure if the primary's H status would remain intact if the derivative uses EAD. Can someone clarify?
 
aks999,
If your wife and kid had valid H-4 approval notice with valid I-94 card( which is true in your case) till you applied for I-485 they are in full status. Your wife got EAD approved also. So this again proves that they are in status. I don't think you get EAD approved if you were out of status ever. I am sure now they are more strict about status issues.
 
"Folks, wait a minute! Don't state things if you are not sure!!"

Not bad advice, but I'm *sure* that the Real Canadian is correct:
I have changed H1 employers 4 times and got legal advice from 3 different lawyers that I did not have to do anything with the H4's for my wife and children other than renew them when they expire.

The advice was the same every time:
The H4 is dependant *only* on my valid H1 status. The employer I have to maintain that valid status H1 is irrelevant.
 
Originally posted by Upstate_NY
When you changed H1 in 3/2003, you had to do a H4 transfer for your wife and kids also using I-539.
Click to expand...

No, no no.

The I-539 is used for a CHANGE (or extension) of non-immigrant status. We're not changing statuses here, we're staying in H-4.

Remeber, the dependent visa is petitioned for by the individual, not her husband's company. The company never filed anything to get the H-4 visa; she went to the consulate with her husband and petitioned for it herself.

The *only* circumstances I could see where she would need to file an I-539 to stay in H-4 status is either to extend the H-4 to match the expriation date of her husband's new H-1, or if she divorced her husband and immediately married another H-1 holder (and even then it might not be necessary).

I wouldn't trust the EAD issuance as a guarantee that we're fine. However, Upstate_NY is incorrect in stating a $1000 fine would be levied. If our poster started the GC process in 2003, he is NOT eligible for 245i. However, to reassure, he does not need it anyways.
 
To confuse you further


May be TheRealCanadian is right but......
H4 is valid as long as your H1 with company A is not expired or revoked by you company A.. I think you can always apply for new H-4 to match the Current (Company B) H1 expiration date...Have better legal opinion rather than having generalized opinions here....
 
TheRealCanadian is absolutely right. As long as the H4 is valid one need not have to do I-539. My spouse used the same old visa to travel while I was on new H-1B.

Only reason one would do I-539 is to extend the dates to match with new H-1B.
 
Question.

Doesn't the H4 visa stamp and/or H4 approval notice state the Employer's Name of the Spouse (H1 Holder)? Maybe that will help us with this discussion. It is good to know.
 
Answer to Upstate_NY's Ques

what Sanga has said is correct, even though Visa and H-4 approval notice have the name of the employer, it is still good enough if these documents are not expired.
 
Please allow me to thank you all guys for your feed back and time.

Most of you guys say and feel that I am ok. That gave me lot of relief. Thanks again.

3LC's NoGC said he consulted 3 attorneys and got the same answer all the times. Which means I do not need to contact another attorney to get the same answer. But I checked with my employer. I was told that I do not need to renew/extend h4s until they expire.

to clarify dependent's question my visa expiration date... Expiration date did not change on both the applications(h4s with company A and my H1 with company B) and also the visa stamp in passport because thats when i am completing 6 years in us.

answer for part of WheresMahGreen's question on primary applicat's H1 status when derivative application uses EAD

Primary applicant will remain on H1 status until he himself uses the EAD. It doesnt change when derivative applicant uses EAD.

more on Upstate_NY's question....

Visa stamp in passport has the name of the company A. But on my wife's h4 approval in the applicant, pititioner and beneficiary areas my wife's name was mentioned and in my son's H4 approval applicant and petitioner name areas have my wife's name and in beneficiary I see my son's name.

By the way these applications (H4s) were filed by previous (company A) sponsoring employer. Still the beneficiary and petitioner fields have my wife's name. not even mine.
 
Originally posted by aks999
By the way these applications (H4s) were filed by previous (company A) sponsoring employer. Still the beneficiary and petitioner fields have my wife's name. not even mine.
Click to expand...

Absolutely, because in the case of an H-1 it is petitioned for by the employer. The employer is the petitioner, and the alien is the beneficiary.

For an H-4 holder, she is the petitioner and the beneficiary. She can go to the consulate with her husband's H-1 approval notice or a copy and get the H-4 visa on her own.

In some cases, the H-1 employer may be annotated on the I-94 or the visa stamp as a guide to BCBP at the border to verify the H-1 holder, but it is not a sign that the employer is petitioning the H-4 dependents.

The vast majority of non-working non-immigrant statuses are self-petitioned; if they come with work authorization they are sponsored and petitioned for by the employer.
 
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