Wife's coming travel abroad

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PermWoes

Registered Users (C)
I have : 1) H1B petition approved till 2010. 2) Priority Date of Sept 05. So, presently current. 3) Both H1B and H4 stamp expired in 2006 4) 485 pending (courtesy 2007 fiasco) 5) Current AP valid till Oct 2008, new AP applied on June 24th, 2008 6) I have used the AP for my business travel once. 7) Wife has not travelled abroad since AP was issued. 8) 485 notice date Aug13,2007 to Nebraska
My wife is set to travel in Aug for 3 months. I want to join her by October end and we all return mid Nov 2008.
Since this extends beyond the scope of current AP, she can not use the new AP. Is there a risk to her AOS application if she goes for 485 stamping to the consulate and return on H4 stamp?, espicially since I have used AP once before. Is it OK if primary applicant is on AOS and the dependant on H4 (and go to the POE like that?)
 
PermWoes said:
I have : 1) H1B petition approved till 2010.
2) Priority Date of Sept 05. So, presently current.
3) Both H1B and H4 stamp expired in 2006
4) 485 pending (courtesy 2007 fiasco)
5) Current AP valid till Oct 2008, new AP applied on June 24th, 2008
6) I have used the AP for my business travel once.
7) Wife has not travelled abroad since AP was issued.
8) 485 notice date Aug13,2007 to Nebraska

My wife is set to travel in Aug for 3 months.
I want to join her by October end and we all return mid Nov 2008.
--------------------She goes out and should be Back before October 2008(i hope she has valid AP till October 2008) Before her AP expires.
Since this extends beyond the scope of current AP, she can not use the new AP.
-------------------if she filed for new AP and that gets approved before she goes out of US then she can use the new AP.
Is there a risk to her AOS application if she goes for 485 stamping to the consulate and return on H4 stamp?,
-----------------------------------what do you mean by 485 stamping to the consulate?? US consulate dont stamp I-485. I-485 is filed with USCIS in US and USCIS approves and local USCIS office stamp the passport if Card has not arrived. US consulates are under DOS not under USCIS.
** She can get H4 visa stamp if you are on H1 status(not used EAD)and can enter on H4 visa
espicially since I have used AP once before. Is it OK if primary applicant is on AOS and the dependant on H4 (and go to the POE like that?)
----------------------------- if You are not on H1 status then she cant get H4 visa stamp. even if YOU used AP in past and still working with same employer who filed your H1 then YOU can get H1 visa stamp and she can get H4 stamp and can enter US on H1 and H4 status.
Click to expand...

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Thanks for replying..
I apologize, I misspoke about 485 stapming. I meant H4 stamping.
I have valid H1 petition till 2010 but the H1 stamp on the passport has expired AND I have once used my AP to enter the US. That is why I dont know if I am on H1 or on AOS and if it matters for wife's visa status.

We have applied for the new AP hope it will come by October end. If the new AP comes by then, I wanted to join my wife and we all return by Nov 15th.

My idea was that since this is past my wife's current AP, she would go for H4 stamping in August to the US Consulate in India and use it to return in November and I use my AP to return when we all come back together on Nov 15.

What got me confused was the fact that I am using an immigrant visa parole to enter and my wife is using a non immigrant dependant visa at the same time.

Most importantly, since this is still in our hands, we are trying to find if it can trigger a RFE or denial of the pending 485 application.

Nebraska is processing Aug10 and our 485 notice date is Aug13, so it appears (atleast now) that we may be close to our 485 processing and a risk may not be worth taking. If necessary, we can extend departure/shorten the trip
 
Whenever you have time could you please respond?

Hi
Thanks for your previous reply. If you get chance, please do look at my question.
 
Ginnu already gave you the answer. In short: If you are not in H-1 status (which you are not), your wife cannot enter the US in H-4 status. She may or may not get her visa, depending on how careful the consulate official is, but even if she does, she will not be able to enter and/or maintain lawful H-4 status. Therefore you have 2 options as ginnu said:

1- Wait for your new AP and travel on that;
2- YOU also get H-1B stamp when you go, so that she can then be in H-4 status.
 
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