Primary AOS , Dependent CP

O

olops

Registered Users (C)
Hello,

In the event that the spouse is unable to enter the country due to non-availabilty of H4 -

Is it possible for the primary applicatant to apply as EB AOS and for the dependent to apply for CP.

Or

Is it that dependent can apply for 485 (AOS/CP) only if present in the United States in some capacity.

Thanks
 
olops,

why H-4 is "unavailable" for your spouse? Is it an ineligibility issue? Or just you have used EAD?

To apply for Adjustment of Status (AOS), the applicant must be physically present in the US.

Consular Processing (CP) is different - the applicant can be abroad, all right. For dependants of the primary AOS applicant, this procedure is called Follow-to-Join and may take place only after the primary's AOS is approved.

I'd suggest to talk to your immigration attorney.
 
Thank you BitterMan for your response.

The reason I say H-4 is "unavailable" for my spouse? is because my spouse has a history of twice being refused F1 visa before our marriage. Now that we need to apply for H4 I am not sure if the previous F1 rejects would in any way harm the new H4 application.

Hence I am exploring other possible options.

From what you say - I am on AOS and in country. If my spouse cannot enter the country on any visa status then one cannot apply for CP option. Only option is to use Follow-to-Join procedure and this can happen only after AOS for primary applicant is approved.

Bitterman pls tell me if I understood correct. Thanks so much for your response.
 
hi olops,

You should go ahead and apply H4 for your spouse. Couple of my friends got thier H1B after 2 and 3 F1 rejections. So don't worry your spouse will get it.
Wish you good luck.
 
olops,

if there is no ineligibility involved, then your spouse should try to apply for H-4 visa. It won't hurt, anyway. F-1 or B-1/B-2 refusal should have no bearing on H-4 eligibility. You see, while F-1, B-1 and B-2 are non-immigrant visa categories that require true non-immigrant intent and a proof of solid ties to the home country; H-4 does not really have that. It is still a non-immigrant visa category, but it allows for immigrant intent. Perhaps, you have heard this buzzword: dual-intent. That's about H-1 and H-4 (well, L-1 and L-2 as well, to be precise).

Keep in mind that in order for your spouse to get an H-4 visa, you must have a valid, unexpired H-1B stamp in your passport. Furthermore, for your spouse to be admitted into the States in H-4 status, you must hold H-1B status (as opposed to "Parolee" status which you get using Advance Parole for re-entry, or "Adjustee" status which you automatically get when you start using EAD).

<Sigh> Why don't you talk to a lawyer? You provide too little information for analysis. I'm afraid my advice is not complete.
 
Does using AP disqualify spouse for H4?

Originally posted by BitterMan
olops,

if there is no ineligibility involved, then your spouse should try to apply for H-4 visa. It won't hurt, anyway. F-1 or B-1/B-2 refusal should have no bearing on H-4 eligibility. You see, while F-1, B-1 and B-2 are non-immigrant visa categories that require true non-immigrant intent and a proof of solid ties to the home country; H-4 does not really have that. It is still a non-immigrant visa category, but it allows for immigrant intent. Perhaps, you have heard this buzzword: dual-intent. That's about H-1 and H-4 (well, L-1 and L-2 as well, to be precise).

Keep in mind that in order for your spouse to get an H-4 visa, you must have a valid, unexpired H-1B stamp in your passport. Furthermore, for your spouse to be admitted into the States in H-4 status, you must hold H-1B status (as opposed to "Parolee" status which you get using Advance Parole for re-entry, or "Adjustee" status which you automatically get when you start using EAD).

<Sigh> Why don't you talk to a lawyer? You provide too little information for analysis. I'm afraid my advice is not complete.
Click to expand...

I am wac02212xxxx EB AOS. I used EAD last year, following which I got new H1B approved (received with new I94 on it). I am planning to travel on AP next week. I am also planning to get H1B stamp in India next month but still return on AP. Couple of months later, I am getting married, is my wife going to be eligible for H4? Am I adjustee or parolee or H1B at that point. Are there any issues if I return on H1B vs AP? I have read number of things about change of status from AOS to H1B not afffecting GC. Is that true? Please advise......

Thanks in advance.
 
tihomg,

you are correct in saying that COS from AOS to H-1B is possible and does not affect the pending AOS. This said, it is very good that you have received another I-94 with your approved H-1B, because it signifies your new status. Otherwise, you would have had to exit the country, obtain a new H-1B stamp in a US Consulate abroad and re-enter again, showing the H-1B at the POE.

Now, you are intending to go abroad, obtain an H-1B stamp and re-enter using AP. This is OK from the standpoint of your H-1B employment, because current regulations allow for continuing employment for the H-1B petitioner in this case.

On the other hand, your spouse will be eligible* to obtain an H-4 visa (based on you having a valid, unexpired H-1B stamp in your passport), but she won't be able to enter the States using it (because your status won't be H-1B at the time - you'll be a "Parolee").

So, in order to bring your spouse into the States, you should enter the country using your new H-1B stamp.

There should be no real issues to re-enter the States using H-1B instead of AP. The usual interview applies, when an immigration officer at the POE asks series of questions regarding current employment. One thing that is different from the usual procedure (when there is no AOS pending) is that you should carry your I-485 receipt (I believe, the original receipt is advised) and show it to the POE immigration officer. The word on the street says that if you don't do that, the AOS could be marked as abandoned. I'm yet to see if there is any evidence to this, though.



* Generally, two things preclude H-4 visa eligibility. Firstly, there must be a primary H-1 visa, for which the dependent H-4 visa is sought. And secondly, the H-4 applicant must be admissible.
 
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