Question on Status

S

siyaram

Registered Users (C)
I have pending 485 from my previous company, my present company has applied for my H1 and my wife's H4 seventh year extension based on pending labor from present company. My wife is planning to work using pending 485 EAD. My question is, if my wife uses EAD, and for some reason if our 485 gets denied, can my wife get back to H4 status? FYI, I am going to maintain my H1 status.
My Company attorney says, if 485 gets denied my wife just has to stop working and she automatically gets back to H4 status. Thanks in advance.
 
It's a tough call. I haven't seen this type of question before. But i think that you can trust your lawyer. For them it should be a simple / routine question. Most of the time they are pessimistic and give wrong answers because they want to give a safe answer, but if they gave a liberal answer, you can almost trust it.
 
siyaram said:
My Company attorney says, if 485 gets denied my wife just has to stop working and she automatically gets back to H4 status.
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It is very rare that 485 gets denied, but your attorney is correct.
 
Thanks DSatish and ar888, I really appreciate your response. Do you know how much time VSC is taking for AP approval, I have to apply AP for my wife and donate money to VSC. :mad:
 
ar888 said:
It is very rare that 485 gets denied, but your attorney is correct.
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On what basis? Once the wife starts working, she has violated her H-4 status and cannot automatically return unless she re-enters the US in H-4. Additionally, if the H was on the basis of a pending GC application which has now been denied, the H may no longer be valid, although this is a very grey area.
 
"On what basis? Once the wife starts working, she has violated her H-4 status and cannot automatically return unless she re-enters the US in H-4"

I got two different answers to the above question, so I am not sure of this.

"if the H was on the basis of a pending GC application which has now been denied, the H may no longer be valid"

Pending GC is not denied, it is still in process, my wife H4 is not on the basis of pending GC application, it is based on present employer pending labor application.

Thanks for your response.
 
My question is, if my wife uses EAD, and for some reason if our 485 gets denied, can my wife get back to H4 status?
------------ She can come back to H-4 status provided she goes out of the country and reapplys for a h-4 visa at the consulate in her home country showing that you are still on H-1B and there is ample time left on your H1-B.

But she cannot go back to h-4 automatically by staying in the US after she uses her EAD.
HTH
 
TheRealCanadian said:
On what basis? Once the wife starts working, she has violated her H-4 status and cannot automatically return unless she re-enters the US in H-4. Additionally, if the H was on the basis of a pending GC application which has now been denied, the H may no longer be valid, although this is a very grey area.
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My reply should've been clearer. But her H4 does not depend on pending GC, and if the GC gets denied, she can stepout and come back on H4 based on her H4 stamp. No need to go the consulate again.
 
siyaram said:
My question is, if my wife uses EAD, and for some reason if our 485 gets denied, can my wife get back to H4 status?
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H4 visa holders usually get VISA in their passports. Is this true for your wife? Opposite to this, there is no even stamp for EAD status holders. So as long as your wife's visa in her passport DIDN't EXPIRE she can switch back and forward between these 2 statuses. My advice: no matter what happens to her EAD - extend her H4 status for another year if possible to prevent expiration from hurting her.
 
Thank you all

Thanks for your response. Mine and My wife VISAS in passport are expired, we are waiting for our 7th year extension approval. Even though my wife is using EAD, what happens if I send her passport to st.louis for H4 visa stamping along with my H1 visa stamping after our extension approval? too many questions right? :) Sorry....
 
siyaram said:
Thanks for your response. Mine and My wife VISAS in passport are expired, we are waiting for our 7th year extension approval. Even though my wife is using EAD, what happens if I send her passport to st.louis for H4 visa stamping along with my H1 visa stamping after our extension approval? too many questions right? :) Sorry....
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I'm not an expert but I guess your worry is groundless. Your wife's status is LEGAL now since she maintains her EAD. So immigration officers CANNOT have any pretensions to her. The only trouble she may have is the DENIAL of H4 (if she filed for extention after her visa expired or just because it's over 6 years). But if she gets approval she gains a great advantage because she doesn't need AP for travelling abroad.
 
voronv said:
I'm not an expert but I guess your worry is groundless. Your wife's status is LEGAL now since she maintains her EAD.
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No, no no!

The EAD does absolutely nothing to maintain her legal status in the US. The pending I-485 does this.

If she has used the EAD to work, she has violated her H-4 status, which has invalidated the H-4 passport visa (if it had not expired). She'll need AP to return to the US. The BCBP agent at the POE may not spot this and may let her in on an H-4, but if he's sharp and finds out she's been working and intends to work in the future, the H-4 will be no good.

If your dependents have used an EAD, they need AP.
 
Social security can give the information to BCIS. I do not know how and when they send this information. If some get SSN for not working purpose and starts working they will inform. It is not clear for people who got SSN though EAD and maintaining H4 status.
 
TheRealCanadian said:
No, no no!
If she has used the EAD to work, she has violated her H-4 status, which has invalidated the H-4 passport visa (if it had not expired).
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I have to admit that YOU ARE RIGHT :( . As though I couldn't find any direct USCIS document confirming this, there are multiple suggestions in Internet like this:
http://immigration-information.com/showthread.php?t=2270
("
Your wife's H-4 status will become invalid if she uses EAD and for travel she needs to use Advance parole. If she has to work she can't use H-4 (it is a dependent visa) so she has to use EAD and using EAD invalidates her H visa category

She can travel on H-4 ( if visa stamping on passport is still valid)technically speaking- but it is a huge risk. After filing I-485 it is always better to travel on Advance parole so that you don't complicate your adjustment of status
")
 
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