Obtaining H4 for spouse while on Advance Parole

K

ksam

Registered Users (C)
Hello,

Thanks for taking time read this message. I have the following question:

I am currently on advance parole and using H1 as work permit (been in the same job for the past 5 years). My H1 is valid until July of 2005 but I don't have a H1 visa stamp in my passport as I am using advance parole for travel abroad.

Can my spouse get H4 on my H1 at US Consulate Chennai ?
If this is not possible, what other options of bringing my spouse ?
Is any one here with similar experience ?

My I-485 RD/ND 03/2002 FP 04/2003

Thanks so much for your help.
 
There was a good discussion on this in some other thread. If you entered US on AP (meaning you are using EAD for working), you are not considered in H1 status, meaning your spouse may not be able to get H4 at a consulate. You need to get yourself in H1 status again (by leaving US and getting H1 stamp in your passport and entering on H1 visa) and than your spouse can get H4 visa with no problems.
 
Thanks for the quick reply.

I am not working on EAD. As far as my work is concerned, I am still on H1B. I have never used EAD to work.
 
If I understand it correctly, if you enter US on AP, you need to use EAD to work. If you enter on AP, you are considered an adjustee, so you cannot use H status, you have to use EAD. Please consult your company lawyers for this, USCIS can claim you worked illegally as you did not work on EAD. Don't sweat but make sure you get the right answers.
 
I am afraid you are mistaken. I was under the same impression when I first got AP, but my company attorneys clearly told me that there is no link between AP and EAD. They said I can use AP to travel and continue to use H1 to work until my I-485 is approved.
 
ksam,
While it is generally assumed that using AP to re-enter automatically necessitates EAD as the required work-authorization, I have confirmed with Ms. Murthy a couple times that H-1 is still ok as long as you are still with the company that originally filed your h-1 (don't know the exact details) but, at best, this seems to be a legal subtlety that can be used in case your don't have a valid EAD for whatever reason. Having said all that, it is best to have EAD at all times if you have used your AP since that's the more recognized scenario.

As far as sponsoring H-4 after having used AP is concerned, the generally accepted rule has been the one mentioned in the earlier response that you need to re-enter using H-1 yourself. However, if you search this forum, you'd probably be able to come up with people posting cases where they have successfully sponsored H-4s after using AP. But, I also noticed that most of these folks did have H-1 stamps on their passports and used those during the H-4 applications,while not highlighting the fact that they had subsequently used AP's.

The bottomline is that if you have used your AP and do not even have an H-1 stamp on your passport, then applying for your spouse's H-4 is taking a chance; if the consulate asks for proof of your H-1 status, then the most likely outcome would be a refusal of the H-4 (since the consulate certainly assumes that using AP means you are an adjustee and you are certainly not gonna get a chance to convince the consular to the contrary).

I am in a similar situation (used AP, on H-1/EAD with original employer) and am planning to use follow-to-join instead of applying for H-4. If you decide to go ahead with your H-4 app, please do keep me posted on the outcome. Btw, which consulate would your spouse be going to?
hth and all the best
 
I am with the same employer who file my original H-1. And I did have one H-1 stamp in my passport but it expired end of 2002. Since then I used AP to travel.
Chennai consulate is the one we can use to get any US visas.
What is "follow-to-join" you are talking about ? Can you explain a bit ? How long does that take ? and How easy is it ?

Thanks in advance.
 
Well said. I do think that with the recent US VISIT system in place, USCIS will be able to better track how people enter and on what status. I do remember reading on Murthy (I don't remember the basis on which she concludes that) about it and you are very correct. But I still feel that if somebody uses AP, it means they are parolled indefinately in the US as opposed to non immigrant visa.
 
If you do have an H-1 stamp on your passport, it just may be worth taking a chance to send a copy of that along with her H-4 application and then hope and pray the consulate doesn't look any deeper - as I mentioned it's been known to work earlier.

So, if you did have an H-1 stamp earlier, is there any particular reason you don't want to go back and apply for an H-1 yourself - as any attorney would tell you, that is your safest bet.

follow-to-join or ftj is a process you can use if you get married to someone outside the US once you have already filed your I485; essentially it lets you circumvent the long process that you've to go thru if you get married after you get your GC. You can use ftj to get your wife's greencard as a dependent beneficiary of your I485 approval; but she would have to wait until your GC approval plus a few months to get here. There's a very detailed thread on ftj if you look under family-based immigrant visas in this forum. I don't know how to paste links to other threads, but you will find it hard to miss under the family-based section...
 
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