Marriage while I-140 and I-485 is pending

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linux1112000

Registered Users (C)
I am on H1B status and my I-140 and I-485 is pending and I never had H1B stamp on my passport. I have been using AP for international travel.

I would like to go home and get married with in few months. Since my passport was never stamped, how could I bring my wife in USA?

I was thinking of getting married then apply AP for her while she is in back home and use the AP to bring her here. I am not sure if I could apply for her this way. If I could then could someone describe what the procedure is?

I have applied for I-140 and I-485 in last July. Could someone tell me how soon should I get married and what is the best way to bring my wife here provided that I never had H1B stamped on my passport?
 
U cannot file for her AP. Her AP can only be filed after filing her 485. By definition, she needs to be in US to file 485 **before** she can get her AP.

Ofcourse, u can file for H1, get H1 stamped and then bring her on H4.. Not sure if there is any other way out - u may get opinions from forum gurus..

About ur other question about "how soon u have to get married" - she needs to get into US while ur 485 is still pending. Which center did u file through? If Texas, u have enuf time.. If any other, would suggest u hurry up as other centers are processing cases from Jan/Feb 2002, and even some April/Oct 2002 cases have been approved. So, ur case "could" be approved soon (though ofcourse, there are cases since 2000/2001 still pending approval)

goodluck!

-ab
 
Originally posted by linux1112000
I am on H1B status and my I-140 and I-485 is pending and I never had H1B stamp on my passport. I have been using AP for international travel.

I would like to go home and get married with in few months. Since my passport was never stamped, how could I bring my wife in USA?

If your H1 is still valid collect relevent documents and get it stamped in your home country. Since H1 is dual intend you can have pending 140/485 and H1 simultaneously. After that you can file for your wife's H4 and bring her into the US and file for her 131/765/485.

Or opt for consular processing and withdraw your 485. This way you and your wife can both get approved together. But you have to abandon your 765/131 and have valid H1/L1 status.
I was thinking of getting married then apply AP for her while she is in back home and use the AP to bring her here. I am not sure if I could apply for her this way. If I could then could someone describe what the procedure is?

For you to apply AP the person should have filed for 485. For filing 485 the alien should be in legal status in this country. So applying for AP/485 for your wife is not a choice.

Read www.americanlaw.com/aos.html for more details.

hth
dyno

I have applied for I-140 and I-485 in last July. Could someone tell me how soon should I get married and what is the best way to bring my wife here provided that I never had H1B stamped on my passport?
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My two cents!

I don’t think it's necessary to have a H1B Visa stamp on your passport to apply for H4 for your spouse. I am assuming you are still maintaining H1B status and have been only using AP for entry into the US.

I am in a similar situation. Hold H1B, don’t have H1B stamp, plan to use AP. Go to India, get married, come back, apply H4 for spouse, send documents to her/consulate and have her get the H4 stamp on her passport, bring here here, and then file her I-485

Your own H1B stamp on passport is not a criteria, however maintaining lawful legal H1B status is.
 
My two cents!

I don’t think it's necessary to have a H1B Visa stamp on your passport to apply for H4 for your spouse. I am assuming you are still maintaining H1B status and have been only using AP for entry into the US.

I am in a similar situation. Hold H1B, don’t have H1B stamp, plan to use AP. Go to India, get married, come back, apply H4 for spouse, send documents to her/consulate and have her get the H4 stamp on her passport, bring here here, and then file her I-485

Your own H1B stamp on passport is not a criteria, however maintaining lawful legal H1B status is.
 
I might be wrong, but if you don't get your H1 stamp in your passport and enter on AP, you are NOT in H1 status and you are a parolee. Even if wife than goes to consulate and gets H4, she technically cannot enter US on that because the principle is NOT in H1. If wife manages to enter on H4 in the above circumstances, she might start accumulating unlawful presence. I think this issue is fraught with danger and you will be well advised to consult an attorney.
 
Entering on AP does not change your status in US. If you have been maintaining H1B status (meaning not used EAD), irrespective of the mode of entry into the US, you will continue to be on H1B. If you have H1B stamped on your passport, you could use that, if not you can use AP. Does not matter as far as your lawful H1B status in US is concerened.

AP is just a means to enter US without having to obtain a US Visa. Period.

Obviously it's always a good idea to contact a lawyer.
 
This is lifted from usvisanews website. The question was answered in Aug 2003.

------------------------------------------------

3. Are there any problems we should anticipate when traveling on advance parole? My wife and I have maintained my status perfectly and are adjustees based on my ongoing employment. We simply do not have H-1B visas stamped in our passports.

A: Advance parole is an alternative to entry in H-1B status. While entry in H-1B status would require a valid H-1B visa stamp, advance parole does not. Based on what you state, there should not be a problem with your re-entry by advance parole, however you should note that all entries are at the discretion of the officers at the port of entry and thus are never 100% guaranteed. You should also be aware that re- entering using advance parole means that you will not be considered to hold H-1B status upon re-entry. Thus, employment beyond re-entry will require valid employment authorization documents (EAD's.)

---------------------------------

Please note "You should also be aware that re- entering using advance parole means that you will not be considered to hold H-1B status upon re-entry".

Comments??
 
Originally posted by Sun07
Entering on AP does not change your status in US. AP is just a means to enter US without having to obtain a US Visa. Period.
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Nonsense. If you enter using AP, you are "paroled" into the US, and are NOT in H-1B status. Does your I-94 say "H-1" on it? If it doesn't, you are not in H-1B status.

Now, there is some disagreement regarding use of an EAD after entering using AP. There are some old memoranda from 1997 or so that indicate that an alien who enters as a parolee can continue to work for the H-1/L-1 employer, provided the H-1 or L-1 has not expired, even though they are not in H/L status. They can then revert to H/L status by extending the petition when it expires.

As the memorandum is 6 or 7 years old now, I personally would be leery staking too much on its validity, but there is a reasonable possibility that it remains valid. However, if I entered using AP I would prefer to keep safe and have an EAD just in case.
 
I agree RealCanadian..., what I was worried about this guy is his wife entering on H4 after he enters on AP. My worry is accumulating unlawful presence. What do you think? And knowing BCIS, regulations can be interpreted aggressively and not always in your favor.

Maybe he can enter on AP and when his wife is about to come, he can go to Canada or Mexico, get H1 and reenter on H1 to preserve his wife's H4.

I have read somewhere that you can jump between being a parolee and being in H1 status. I really don't know if you can do that while remaining in the country. I mean, the only proof you have to showing your intention of staying in H1 status is the document your employer uses to satify I-9 employment verification requirements.
 
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Originally posted by jllag1
what I was worried about this guy is his wife entering on H4 after he enters on AP. My worry is accumulating unlawful presence.
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I don't see the issue as being unlawful presence for either the husband or the spouse, it's a more basic question - will the wife even be admitted into the US?

For her to get an H-4 passport visa at the consulate, she'll probably need to present copies of the husband's I-797 H-1 approval notice, as well as a copy of his I-94. Having entered on AP, the I-94 will be a problem, since it won't have H-1 on it. Most likely, she won't get an H-4 visa stamp.

Even if she does, if they attempt to enter together and the husband uses AP, the POE official may very well refuse her entry, since the husband isn't in H-1 status. I have heard of the spouse entering in on an H-4 while the husband used AP, but it's a gamble in my opinion. If you lose, she gets possibly expedited removal and at the very least you need to buy a one-way ticket to India. Your choice if you want to gamble, but for what it's worth I wouldn't.

I have read somewhere that you can jump between being a parolee and being in H1 status. I really don't know if you can do that while remaining in the country.
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There seems to be a gray area in terms of old INS memoranda. They seem to indicate that if you are working for your L/H sponsor and the L/H petition is still valid, you can use AP to enter, but the H/L petition preserves your work authorization even if you are not in H/L status. Again, it's really gray and the memoranda are relatively quite old so I don't know what USCIS' current position on the subject is.
 
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