Return to US on H4

V

vibha131

Registered Users (C)
Hi,

I was on H4 and applied for i-485 and got my EAD.
I started working on the EAD. I was of the impression that I can travel outside the country as long as my H4 does not expire. So, I went to Canada for 2 days and returned. I was let into US (I guess on the basis of my H4).

Now, my attorney is advising me that my i-485 application is nullified and so is my EAD (because I did not travel on Advance Parole) and I can no longer work. I have to re-file my i-485.

Does anyone have any clue?

Thanks and Regards,
Vibha
 
You lost your H4 status by using EAD to work. So, when you travelled outside U.S. and re-entered, you should have used your AP.
 
I was on H4 and applied for i-485 and got my EAD.
I started working on the EAD. I was of the impression that I can travel outside the country as long as my H4 does not expire. So, I went to Canada for 2 days and returned. I was let into US (I guess on the basis of my H4).
--- If you had H4 visa stamped in your passport you were admitted in H4 and your status is H4 if you are not working
Now, my attorney is advising me that my i-485 application is nullified and so is my EAD (because I did not travel on Advance Parole) and I can no longer work. I have to re-file my i-485.
------ You need second opinion according to Murthy If H4 holder uses EAD and then leaves the job and renters on H4 his/her status will be H4 again (if primary H1 holder does not use EAD and maintain H1 status) you can search for Murthy chat from www.murthy.com
-------Your EAD is not nullified; I don’t agree with your lawyer, your I-485 also is valid

mimihu”You lost your H4 status by using EAD to work. So, when you traveled outside U.S. and re-entered, you should have used your AP.”
---- She lost H4 status when she worked on EAD, when she went out she is allowed to enter on H4 or AP; if she used H4 visa to re-enter she is on H4 status. If one has H visa or AP it is up to the person what he shows at POE and will be admitted according to that as she has shown her H4 she should have I-94 with H4 status.
“so now I cannot use the same EAD to work any more?”
--- If you have valid EAD you can start working again EAD is given to you by BCIS for work and you will not be on H4 status.

For more info take the printout and real all the below:
http://www.immigrationlinks.com/news/news301.htm
http://www.murthy.com/UDnewins.html
http://www.vkblaw.com/news/fivehundredtwentyfive.htm

http://www.shusterman.com/h1memo500.html
http://www.shusterman.com/hl-99regs.html
 
Thanks ginnu and mimhu.

According to my attorneys,

Under 8 C.F.R. §245.2(a)(4)(ii)(C), "[t]he travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and
and who is in lawful H-4 or L-2 status shall not be deemed an abandonment of the application if the spouse or parent of such alien through whom the H-4 or L-2 status was obtained is maintaining H-1 or L-1 status and the alien remains otherwise eligible for H-4 or L-2 status, and, the alien is in possession of a valid H-4 or L-2 visa (if required) and the original copy of the I-797 receipt notice for the application for adjustment of status."


An alien no longer eligible for H-4 status as a result of her employment in the U.S. is required to obtain an Advance Parole document in order to travel abroad under
8 C.F.R. §245.2(a)(4)(ii)(B) which states that
"[t]he travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences, and was inspected and paroled upon returning to the United States."

Once I began employment in the U.S. on the basis of the EAD Card, my H-4 status was invalidated and hence I could not have used my H-4 visa to travel abroad and should have obtained Advance Parole from CIS. Because I was no longer in H-4 status and traveled abroad without Advance Parole, as per the rules, CIS would consider my I-485 Application abandoned. Hence I must refile the I-485 application and supporting documents. Because my employment authorization was granted on the basis of my prior I-485, which would be considered abandoned, I no longer possess valid work authorization in the U.S. Accordingly, I must re-acquire authorization to work in the U.S. based upon a newly filed I-485 application and should NOT work at all for any company, either as a paid employee or on a voluntary basis, until I obtain a new EAD Card.


What do I do?
 
Also, I read the chat archives and consulted the firm that you mentioned. They think I was ok with returning on H4 but shouldn't have started working right away. However, the rules (that I have pasted in the previous post) make me believe that my application would indeed have been abandoned. Do you now of any rule/memo that can confirm that even after using EAD, i.e. not being in H4 status, I could have returned on H4 without abandoning my i-485 application?

Thanks and Regards,
Vibha
 
Here is the latest from Lawyer Sheela Murthy , I hope your Lawyer need to check May2000 MEMO from INS
http://www.murthy.com/chat1027.html


Chat User : Does using EAD on H-4 affect the nonimmigrant status? Can one get that status back if one stops using it?

Attorney Murthy : One cannot just get the status back merely by stopping to work on the EAD. A person is allowed to file an H-4 extension or, when traveling abroad, s/he may choose to reenter the U.S. on H-4 status instead of on parole status based on the AP approval. This will enable the person to get back his/her H1B status per the May 2000 Legacy INS Memo on this subject.

** If confusion I would like to have consultation with Murthy. Will not waist the Medical fees, Lawyer fees+ BCIS fees for new I-485
 
Hi ginnu,

Thank you...You're being very helpful.

I saw the memo and noticed teh difference in the Question and Answer conecrned.

In March memo,

4. Should an alien returning to the United States from travel abroad who has a valid I-512 and a valid H-1 or L-1 nonimmigrant visa be paroled in or readmitted in H or L status?

If an H-1 or L-1 nonimmigrant has not violated his/her nonimmigrant status, including restrictions on period of stay, change of employer and engaging in unauthorized employment, s/he may be readmitted into H or L status or be paroled into the United States; it is the alien's choice. However, such nonimmigrants no longer need to use advance parole to preserve pending applications for adjustment of status, and the fact that they have applied for and received

Form I-512 does not compel the alien to use that advance parole.

If the H-1 or L-1 nonimmigrant has violated his/her H or L nonimmigrant classification, including restrictions on periods of stay, change of employer and engaging in unauthorized employment, then s/he cannot be readmitted as an H or L nonimmigrant. Instead, such an alien may be paroled into the United States.



In May memo,

5. Should an alien returning to the United States from travel abroad who has a valid 1-512 and a valid H-1 or L-1 nonimmigrant visa be paroled in or readmitted in H-1 or L-1 status?

If an alien has a valid H-1or L-1 nonimmigrant visa and is eligible for H-1 or L- 1 nonimmigrant status and also has a valid Form I-512, he or she may be readmitted into H-1 or L-1 status or be paroled into the United States. It is the alien's prerogative to present either document at inspection. However, if an alien presents both a valid H-1 or L-1 nonimmigrant visa and a valid Form I-512, and the alien is eligible for the H-1 or L-1 nonimmigrant classification, the Service should inform the alien that H-1 and L-1 nonimmigrants no longer need to use advance parole to preserve pending applications for adjustment of status and should admit the alien in H-1 or L-1 nonimmigrant status. The fact that an alien has applied for advance parole and received Form I-512 does not compel him or her to use the advance parole.

If the alien is not admissible as an H- I or L-I nonimmigrant, then he or she cannot be readmitted as an H- I or L-I nonimmigrant. Instead, such an alien may be paroled into the United States.



From this, it appears that INS means that even if an H1 person has used EAD , he can choose to return on H1. But the problemis they have specifically said H1 and haven't talked about H4, whereas in the Rue in 1999, (the one that my attorney has mentioned), H4 is specifically mentioned.

I did take the second opinion of .... and they advised that I had not abandoned my i-485 by returning on H4, because whatever applies to H1 should apply to H4 also. But the fact that I entered on H4 and then went to work the very next day was wrong. However, they think I should take the risk and stick with the current application.

But I'm scared of assuming that everything that applies to H1 applies to H4, because in the original rule of 1999, H1 and H4 are mentioned separately.


I also came across this article...
http://www.usvisanews.com/memo1822.html

I am sooooooooooooo confused...

Thanks and Regards,
Vibha
 
I did take the second opinion of .... and they advised that I had not abandoned my i-485 by returning on H4, because whatever applies to H1 should apply to H4 also. But the fact that I entered on H4 and then went to work the very next day was wrong. However, they think I should take the risk and stick with the current application.
---- I believe the above info.
FYI Let me inform you one of my friend is on H1, he got his EAD and got EAD for spouse, H1 holder never used EAD but his wife used EAD for 5 months then went to India, she had valid H4 visa stamp in her passport. She entered again on H4 visa got I-94 based on H4 visa stamp and entered on H4 status. After 2 months she again joined job in wall Mart NJ with EAD. Later she also applied for EAD extension and AP with VSC, her EAD and AP were approved. If the I-485 had been abandoned in her case BCIS would have not approved EAD and AP for her applications. Recently her husband and her I-485 has been approved and got GC.
You have to believe what you think well or what good competent lawyer says. I leave this discussion.
Good Luck!!
 
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