Leaving on F1 and coming back on H1 while AOS pending

[sandeep2453]

Can someone please help me answer my questions below. Any help will be highly appreciated. Thanks

My wife's OPT recently expired. She has an H1b approval (visa to be issued abroad) with a start date of Oct 1. Meanwhile she has also applied for 485 as my derivative beneficiary. We recently also applied for her COS from F1 to H4. We are planning to go to India to get the H1B stamped but are fearing that recent filing of 485 would be abandoned. My question is
1) Can a person currently on F1 with pending I 485 leave US for 30 days and comeback on H1B without abandoning I 485 application assuming travel is without AP?
2) Once she gets her H4 approved (likely after Oct 1) can she go and get H1B stamped even though the start date on her h1b is Oct 1?
3) Can we get an emergency AP from local USCIS office given our situation?

 

[manwithnoname]

Your wife's H-1B seems is a new application, and not a transfer, I think you are all set. Pleae remember, once you get this one stamped, all previous H-4 or F-1 visa will become invalid.

AP is necessary when there are no other visa available when you filed AOS, or there exists a possibility of getting AOS approved while staying abroad.

That's my take of your situation - other please feel free to add here.

 

[niladri30]

There is no such thing as being on F1 with pending I-485.

F1, unlike H1, is NOT a dual intent (immigrant / non-immigrant) visa. Hence, F1 was abandoned upon filing I-485, and her current valid legal status is AOS.

She can exit and re-enter on AP or on valid H1-B / H4, since H is a dual-intent (immigrant / non-immigrant) visa, without affecting her I-485 application.

I am no longer sure (it's been a long time since when I was current on this), but I believe that although it has been common practice to file for AP, leave, obtain AP in the US while abroad, have someone mail it abroad, and re-enter on AP, the law requires that one obtain the AP before one leaves.

Unless she wishes to preserve H1-B status, she can work for her new employer using an EAD that she is now eligible to apply for. The inconveniences of not maintaing H status concurrent with AOS is that a valid AP is required to be in place for every trip abroad, and that there is no fall-back status if I-485 is denied for any reason.