URGENT!! Filing for I-485 within 10 days of Spouse's H1 cancellation

[Wizard]

I am in a strange situation. I am on H1 visa and was going to file I-485 in next couple of days. My spouse is also on H1 visa. Today my spouse was informed by his employer that his H1 is Cancelled and he has 10 days to find other options.

1). Can I go ahead and file I-485 in next few days, while he looks for other options.
2). If not then Is it possible to file I-485 with the receipt of new H1/H4 filing or he needs an approved H1/H4.

Please help.

 

[Jim Mills]

I'd file an I-485 ASAP. There are several arguments that he is still in a valid status. If he visa was truly cancelled, he would NOT have 10 days, why did his employer state this? Even if they mailed the cancellation to INS last week it would probably take several weeks (at least) for INS to cancel the visa. Also, there is an argument that as long as an H-1 holder remains in status, H-4 beneficiarys remain in status. Although your spouse does not currently hold H-4 status, there is a argument that any violation is technical at worst. I'd file the I-485 ASAP and then wait and see if INS makes an issue of it. Speak with your attorney.

 

[Wizard]

Thanks a lot for your advise. I will go ahead and ask my attorney to file I-485 tommorow and also update their staff with the circumstances.
Do you think I-485 can be filed with H4 filing receipt (just in case..) However we also thought about my spouse going back to the home country and get H4 at the American Consulate to save time.
Is this an option at all?

 

[Jim Mills]

It's possible but there are now sometimes delays in processing at consulates due to security checking and he can't leave the US without AP if he files an I-485.