Irrespective of AP issues,
Can she go back to H4 status from AOS?
---- Yes she can, and one can be AOS ANDH4 status
If yes, using which way?
----- She should go out of US apply H4 based on your H1 and enter on H4 visa
Applying for H4 here or from the home country based on my H1?
------ She should apply in US consulate out of US in your home country
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Ginnu,
I have asked this question a couple of times in the forum but did not get any specific answer.
Here is my situation.
Applied for I-140/I-485 in Feb 2003.
I am currently on H1 valid till Oct. 2005.
I-140 still pending.
Applied for EAD for both of us and received it.
Wife's H4 expired on April 1, 2003 - Did not renew it since was planning to work.
---------She is staying illegal AND out of status but if her I-485 was filed before her H4 status or I-94 expiry date then she is staying legally her status is AOS pending
Now she doesn't plan to work for another year or so (yes you guessed it - expecting baby)
----- she can stay in US if she has AOS pending or got I-485 filing receipt and can give birth to baby here in US
With all the requirements about transit VISA. I wouls like to get her back on H4 status.
Can I apply for her H4 here now?
-------- NO, you should have applied before her I-94 expiry date, if you send form I-539 to BCIS they will reject it, but she can go out of US and can get H4 visa based on your H1(if you have NOT used EAD) and other required documents to get H4 visa, once she gets H4 visa stamped in her passport she can show H4 visa stamp at POE and will get I-94 based on H4 visa validity.
Or, when I go to my home country - can she appear for H4 VISA over there and get it stamped based on my H1?
---- YES
I have asked the company lawyer he says she will remain in AOS till I-485 decision is reached.
---- He is correct, as I noted your I-140 is still pending if I-140 is denied then EAD, AP, I-485 all will be denied. If I am in your situation I will maintain H1b status and will get my spouse H4 stamped from consulate out of US and I (H1holder)will not use EAD.
having valid AP is good if any problem for H4 visa stamp so she can enter with AP. always keep back up