Marriage and I-485

I

Independent1971

Registered Users (C)
Would appreciate if anyone with similar case, can respond to this scenario below:
1) Wife enters USA on H4
2) Her I-485/AP/EAD are filed. She leaves USA almost immediately after I-485 filing (again on H4, her AP is not approved yet) to attend/finish her study outside USA.
3) She comes back to USA (on H4) after her study is over

Any issues with this? She can enter/exit USA using H4 anytime while her AOS/AP/EAD are pending - is that a correct understanding?
My lawyer's take on this is to file for her AOS once she is done with her study abroad. But, there is a risk there - my GC may get approved by then and she has to wait another 6/7 months thru consular processing before she can come to USA.
 
No problem as LONG AS the husband is on valid H1 status. If you have used your EAD then this option is no longer available to you. Also consider the fact that till she completes her studies, you have to maintain H1 status and cannot use your EAD, which effectively kills her H4.

If she files for AOS as a derivative, then there aren't as many restrictions upon how long she can leave the country, but she better have a good explanation IF the immigration officer at POE asks her for one.
 
have been in the same exact situation without encountering any problems. but had maintained the H1 status till spouse got back to US.
 
Independent1971,

while the described scenario should not be a problem as long as your spouse's AOS is pending, some complications may arise should INS approve her case while she is abroad.

You see, H-4 visas are, indeed, dual-intent, so you may be admitted into the US in H-4 status even if you have applied for permanent residency. But they are still non-immigrant visas and are incompatible with permanent resident status. So, whenever AOS is approved while the beneficiary of the application is abroad, using a non-immigrant visa for entering the country would be like saying: "screw the immigrant visa, I liked my non-immigrant status better."

Standard procedure in such cases is that persons with approved AOS enter the country using Advance Parole documents. Then they are granted Deferred Inspection for passport stamping. But no Advance Parole - no Green Card. And I don't think it is a personal discretion of immigration officers at POE.

I hope, now you understand the complications better.

By the way, INS should not approve an AP document for a person who is not physically present in the US. So save yourself the expense of applying.
 
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