Legal Status Question-Jim / Experts

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vaga

Registered Users (C)
I have this question about legal status:

I and my spouse have H-1B visas.
I applied I140 and I485/EAD/AP (both of us)

I140 not yet approved.
EAD/AP approved for BOTH

My spouse may be laid off soon (days)
Has EAD (my dependent) now but is worried of getting another job immediately (no time)

My Question:

1. Does my spouse needs to apply for H-4 (as my dependent) if laid off ? (currently on H-1B)

2. What needs to be done, if any, to ensure the legal status is not jeoparadised ??

3. Is my spouse's legal status protected if EAD is issued as my dependent ?



I appreciate your input.
 
Its better to do that

H4 should be applied within one month of laid off. I am going to India to get her H4 stamp as H1 to H4 transfer was not possible as it was late to do so. Send her and your's pay stup when you file for H1 to h4 visa.
 
What Do you Mean"late to do H1 to H4"

I understood that my spouse need to get H-4 (change of status from H-1) eventhough EAD was issued (as my dependent).

What if my spouse stays in US, no plans to visit India soon. Can H1 to H4 stamping done here ? ( as I know, State Dept allow only extension of visa of only H-1 )

If H1 to H4 change done here, no need to go to India for change of status, isn't it right ??
 
Vaga:

If your wife has had a prior H4 stamping on the passport you can get her passport stamped here in the Us by mailing it to the office in St. Louis but if there has been no prior stamping in the passport of a H4 then the stamping will have to be done in the home country.

Secondly (am not a 100% sure on this), since the EAD card replaces the H1/H4 you and your wife should be in legal status with the EAD but if possible it is always safe to get a the H4.

Good luck!
 
She still would be

considered under adjustment of status...so there is a possibility of her H-4 being denied
 
Explained In Detail, Please Attention !

I am trying to clarify certain things so there is no confusion:


1. Came as student/dependent on F-1 and F-2 (dependent)
2. Both got H-1 later and have valid H-1 Visas
3. Currently, BOTH of us on H-1
4. GC filed thro my company, I-140 pending
5. Both recieved EAD (my spouse as my dependent)
6. She may loose her job.

Explanation: We are trying to get another job (getting H-1 seems to be a problem as we are in a small town). However, my spouse can use EAD. So there is no need to get a H-1 to work.

My Questions:

1. Since my wife is on H-1 till now, does she need to become H-4 officially ?
In other words, getting an EAD means she does not need H-4 to maintain her status as my dependent ? From what I understood, EAD is only for employment purpose and H-4 is official change of status as my dependent ?
Is this Right ?

2. If she changes her status to H-4, she can not change her visa here in US . Isn't this right ?

3. If she gets back on H-1 from H-4 later (if my I-140 runs into problem), can she reenter US on previous H-1 visa (it is valid until 2004) ?

Please dont LAUGH, we are thinking of real life alternatives ?
We are going to consult attorney, but we need second (third....) opinion so, if our attorney is off the mark we will have some background knowledge from this forum to clarify.
 
Ref: vaga

Explained In Detail, Please Attention !
I am trying to clarify certain things so there is no confusion:


1. Came as student/dependent on F-1 and F-2 (dependent)
2. Both got H-1 later and have valid H-1 Visas
3. Currently, BOTH of us on H-1
4. GC filed thro my company, I-140 pending
5. Both recieved EAD (my spouse as my dependent)
6. She may loose her job.

Explanation: We are trying to get another job (getting H-1 seems to be a problem as we are in a small town). However, my spouse can use EAD. So there is no need to get a H-1 to work.

My Questions:

1. Since my wife is on H-1 till now, does she need to become H-4 officially ?

Yes. Because her H1 becomes invalid once she looses her Job. ( Some say you are in status as long as your I-94 is valid )
All you need is to apply for her H4 and its is very easy as I have done recently for my wife.

In other words, getting an EAD means she does not need H-4 to maintain her status as my dependent ? From what I understood, EAD is only for employment purpose and H-4 is official change of status as my dependent ?
Is this Right ?

Yes. You are right. EAD is only for Employment purposes and if status you need have H1 or H4 depending on the situation.

2. If she changes her status to H-4, she can not change her visa here in US . Isn't this right ?

Yes, she cannot get her H4 Visa stamped here in U.S. because earlier she had a F1 or H1 visa on her passport.You can only get your visa stamped as long as you had same status earlier. If you are changing your status then should go to your home or other country outside united states. My advice is to apply for Advance Parole immediately for your wife as you have no plans of going leaving U.S. and once she gets her AP, she can always travel using AP.

3. If she gets back on H-1 from H-4 later (if my I-140 runs into problem), can she reenter US on previous H-1 visa (it is valid until 2004) ?
It is always better to have the visa on the sponsering employer, but as long as she has valid H1 it should not be a problem, But you should check with someone that once she uses her EAD, she may loose her H4 status.


Please dont LAUGH, we are thinking of real life alternatives ?
We are going to consult attorney, but we need second (third....) opinion so, if our attorney is off the mark we will have some background knowledge from this forum to clarify.

And Finally, I don't think anybody here in this forum will LAUGH at other questions or problems. We are all here to help each other in all immigration issues.

Hope this helps and Good Luck to you.
Needhelp1
 
I agree needhelp1's opinion. But I'd like to add some content on the second question:
You need not get a visa stamp if you do not plan to travel out of the US now. Your receipt of I-765 from INS for H4 keep your vaild status enough. If you need travel out of the US, you could contact with your company's lawyer, he/she might do it for you. When I changed my last job, a company's lawyer ever asked me whether I planed to travel out of the US, otherwise, she could help me to get a visa for me before travel. I did not ask her to do that, so I do not know more.
 
she has filed I-485 (as your dependent) and that keeps her in status regardless of losing her H1 job. she can work with EAD or choose not to work - that's OK. some like to have a backup H status (she could switch to H4 as long as you're in H1), in case the adjustment of status is denied for some reason. even for that, if you get RFE then you could file H4 as precautionary measure but no need to rush and switch to H4 now. its good to keep time within the 6 years H cap.
 
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