Pending I485 - problem during travel - need help

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wtg4gclong

New Member
Here are my details and need urgent help. I am in a dilemma.

Applied for 485 – EB2, I am in ROW case – got approval, card has not come yet

Was on H1b, applied for EAD/AP and was asked to move to EAD by employer
Applied for spouse‘s 485 – while she was on H4 with me
She had previously entered using visa waiver when we enter in US, after that moved to H4 visa
Spouse went on vacation for 2 months; she did go after getting AP. Meanwhile my case got approved, and I asked her to return

While returning, she did not have smooth entry. Port people told her that why she left the country etc, and did not enter her on AP, her H4 was already expired. So finally, she was let in on visa waiver.

Now here is my confusion.

What happens to her 485 application?
What should we do now?

I am thoroughly confused, can someone give idea?
 
She had previously entered using visa waiver when we enter in US, after that moved to H4 visa
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Did she exit the US and reenter with H4, or did she directly switch from visa waiver to H4 inside the US?

The visa waiver doesn't allow changing status, so if she switched status inside the US, it wouldn't be a valid change of status, which in turn would invalidate her I-485.

She also can't switch from the visa waiver to I-485 inside the US based on an employment-based petition.

Without a valid I-485, she'll need to leave the US and wait for consular processing follow-to-join. And you'll need to file I-824 to move her case to the consulate.
 
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Thanks for the reply

So far this is what happened - 1st time entered on visa waiver, moved to H4 - properly with stamp, moved from H4 to AP ( inside), travelled with AP (H4 had expired by this time), while entering, she was entered on visa waiver

while entering, they reviwed her documents and entered her on Visa waiver instead of AP.
 
No, had H4 stamped outside of US and entered properly
Filed I485 with H4 while inside (which is legally allowed)
Moved from H4 to AP (while inside)
Travelled with AP
Reentered on visa waiver and not AP, while returning from europe
 
OK, since she did directly not switch from the visa waiver to H4 or I-485 inside the US, she might be able to save the I-485 by leaving the US and reentering with AP. But only if the AP was approved before she left the US 2 months ago.

If that fails, she'll have to switch to consular processing and wait outside the US. Fortunately you're in EB2 ROW, so there probably won't be any retrogression and she should be able to return in 4-6 months after you file the I-824.
 
Pending I485 (case number not yet assigned)

I have a related question.
I am a green card holder and my son was paroled into the US when he was 14 months old. I filed a 485 for him and it is pending (no case number has been assigned yet). His parole stamp has now expired, and he is now 29 months old. I need to travel outside the US and need to take my son with me.
1) I know the 485 will be successful, so can I take him out and wait until until the 485 comes through to return with him. My understanding is that the 485 is only important for the re-entry to the US, why do I need to wait for the results of the 485 to exit with my son?
2) Will immigration, at the port of re-entry, be able to know that he left the country before attaining the 485?
 
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