Status of Child (H-4) after AP

C

confer485

Registered Users (C)
I-140/I-485 concurrent- Both pending.
Principle applicant (Self) on H-1B, no EAD.
Spouse's EAD approved, currently not working.
Son (Age 13 yr) on H-4.
All Passports do not have visa stamps.

QUESTION:

Spouse and Son intend to travel on AP. Upon returning, I expect that spouse's status would be "adjustee" (I-485 pending).
What would be status of son? H-4 or "adjustee"?, Note that principle applicant remains on H-1B, since I do not intend to travel or have and use EAD.

I am concerned because, when I apply for extension of my H-1B, My son's status could become an issue,i.e. if his status is "adjustee", whether I need to (and can I) apply for extension of his H-4?

Thanks.
 
If your spouse has not filed W9 (that is, has not joined any employer yet), then AP is not required. It is safer and cleaner to travel using H4s for dependents, compared to AP.
If you use AP for your dependents I dont think it is advisable to shuttle back to H4.
It is advisable to stick to AP, if you use AP once for dependents. If the principal is in H1, it is advisable to get H4 visa stamps and enter US. Getting the H4 visa stamp does not invalidate the approved EAD.
 
Jaxen:

Thanks for your reply.

I agree with you that H4 stamp would establish the underlying status for my dependents. I was advised by many to avoid going to the consulate in INDIA for the H4 stamp, due to processing delays(Could take few months for security checks!!). Hence, they are thinking of travelling on AP. I was wondering about the status of my son ("adjustee" or H4) after travel on AP? Here is my interpretation.

1. After travel on AP, the new I-94 would be stamped "adjustee", which is a valid status as long as I-485 is pending. His H-4 status is lost.

2. Same is true for my wife, if she does not use EAD. If she uses EAD, her H-4 status is lost, whether she travels or not.

3. I remain on H1. Now, at the time of H1 renewal, I would only submit apllication for myself. Their status remain as "adjustee".

4. In the event that our I-485 is denied; then I would be able to apply for their change of status from "adjustee" to H4 based on my H1.

Your comments as well as input from other experts would be appreciated. Thanks.
 
“4. In the event that our I-485 is denied; then I would be able to apply for their change of status from "adjustee" to H4 based on my H1.”

I asked a competent lawyer about I-485 denial and H4 status, please find the answer:

If the I-485 is denied and the spouse does not have an
unexpired H-4 visa, the spouse will need to either apply for H-4 status
immediately or go to the home consulate to apply for H-4 status. If the
spouse chooses to apply for H-4 status while in the U.S., the spouse
will
accrue unlawful presence until the H-4 is approved. If the I-485 is
denied
but the spouse has a non-expired H-4 visa, the spouse may leave the U.S.
and
travel back in on the H-4 visa, which will provide immediate H-4
status.”
If I-485 filed and spouse has not used EAD and principal H1B is maintaining H1B status it is better to file for H4 extension (even if I-485 filled and have EAD but not used they are allowed to get H4) and once extension for H4 is approved then better revalidate H4 visa in Passport in US by sending the passport to Department St.Louis, once the passport is Stamped with H4, then if spouse starts working on EAD and in future if I-485 is denied then spouse can immediately leave for Canada or Mexico or home country and can reenter on H4
 
I saw somewhere in the forum that one can be in H1 status and also can maintain the ead. But still does not loose the H1 status.
 
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