Hello,
I am starting this thread just in case it may be helpful to other people in the future, especially the immigration situation is becoming more and more complicated.
My situation:
My wife filed her I-140/485 pursuant to Schedule A with application for EAD in March of 2003. Her H4 expired on July 31, 2003. My child filed her derivative I-485 with her mom. They did not renew their H4, so they lost their non-immigrant status. But they maintained their legal status by being I-485 pending. Some people told me that using EAD will invalidate H4.
In March of 2006, my PD became current. My wife did not want to take TSE for her VisaScreen. So she wanted to file her I-485 with my I-485. However, I was told that she and my child were not eligible to file I-485 since they were out of NONIMMIGRANT status- 245(c)(7) requires an alien to maintain valid nonimmigrant status before adjustment application can be filed.
Besides, they were out of nonimmigration status for far more than 180 days. 245(k) will not help at all. They may be barred from re-entry to the US for several years if they leave US.
Questions:
1. Will using EAD invalidate H4?
2. Do you have to have nonimmigrant visa before filing I-485?
If you filed your own I-140/I-485 and used EAD without H4, could you file derivative I-485 on your spouse's primary I-485? That's, how 245(c)(7) is going to affect your eligibility?
I think the key thing about 245(c)(7) is that it applies to employment-based adjustment. A derivative I-485 has no direct link to employment-based adjustment, it depends on the spouse whose I-485 may be employment-based. Correct me if I am wrong.
The weird thing is that you may get your GC by staying with your own I-485!!!
3. How about doing an interfiling, transferring her pending I-485 to my I-485? If this is fine, does it mean 245(c)(7) does not apply for interfiling?
4. Could you change to H4 in the US while you are I-485 pending and has used EAD?
5. Will leaving US and coming back on H4 solve this problem? Meaning that your prior overstay without a nonimmigrant visa will be forgiven if you leave US and come back on H4 and you then will be able to file derivative I-485 after you come back on H4.
If people cannot file a derivative I-485 without a valid nonimmigrant visa, people should keep their H4 whether they have their I-485 pending or not, assuming using EAD will not affect H4!!
I am starting this thread just in case it may be helpful to other people in the future, especially the immigration situation is becoming more and more complicated.
My situation:
My wife filed her I-140/485 pursuant to Schedule A with application for EAD in March of 2003. Her H4 expired on July 31, 2003. My child filed her derivative I-485 with her mom. They did not renew their H4, so they lost their non-immigrant status. But they maintained their legal status by being I-485 pending. Some people told me that using EAD will invalidate H4.
In March of 2006, my PD became current. My wife did not want to take TSE for her VisaScreen. So she wanted to file her I-485 with my I-485. However, I was told that she and my child were not eligible to file I-485 since they were out of NONIMMIGRANT status- 245(c)(7) requires an alien to maintain valid nonimmigrant status before adjustment application can be filed.
Besides, they were out of nonimmigration status for far more than 180 days. 245(k) will not help at all. They may be barred from re-entry to the US for several years if they leave US.
Questions:
1. Will using EAD invalidate H4?
2. Do you have to have nonimmigrant visa before filing I-485?
If you filed your own I-140/I-485 and used EAD without H4, could you file derivative I-485 on your spouse's primary I-485? That's, how 245(c)(7) is going to affect your eligibility?
I think the key thing about 245(c)(7) is that it applies to employment-based adjustment. A derivative I-485 has no direct link to employment-based adjustment, it depends on the spouse whose I-485 may be employment-based. Correct me if I am wrong.
The weird thing is that you may get your GC by staying with your own I-485!!!
3. How about doing an interfiling, transferring her pending I-485 to my I-485? If this is fine, does it mean 245(c)(7) does not apply for interfiling?
4. Could you change to H4 in the US while you are I-485 pending and has used EAD?
5. Will leaving US and coming back on H4 solve this problem? Meaning that your prior overstay without a nonimmigrant visa will be forgiven if you leave US and come back on H4 and you then will be able to file derivative I-485 after you come back on H4.
If people cannot file a derivative I-485 without a valid nonimmigrant visa, people should keep their H4 whether they have their I-485 pending or not, assuming using EAD will not affect H4!!
