Working on EAD ... I140 gets Rejected ... Going back to H4 ... but 6 yrs of H4 over

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Pareshan4GC

Registered Users (C)
Guys, I really need your advice.

My situation:
I work for COMPANY_A. They have filed my labor from California. I am expecting the labor to clear in 6-7 months.
Meanwhile, another company called COMPANY_B gave me a ready made labor (EB3). We just applied for I140 + I485 (concurrent form VSC). I am expecting the EAD for me and my wife anytime. My 6 yrs of H1 get over in 20 days. My wifes and my daughters 6 yrs of H4 get over in 20 days too. COMPANY_A has already filed for our extensions. The application is still pending.

After we get our EAD's, I plan to remain on H1 but my wife will take up a job based on her EAD (she has already has an offer). Let us assume that the I140 from COMPANY_B will be rejected. I was under the impression that she would have to go back to India and get her H4 stamped and come back. But it just struck me today morning that what if the consulate refuses to give her the H4 on the grounds that her 6 yrs of H4 are over and she now has to stay away from US for 1 year before she can reapply for H4 visa again.

Guys, please throw some light on this.
 
Last edited by a moderator:
unitednations said:
Just because she is working on EAD doesn't mean she has to abandon h-4 7th year extension.

h-4 is her status to stay in the country. h-4 stamp is for her to enter the country. EAD is for her to work in the country. She can maintain EAD and H-4.

If you do not go for 7th year extension then she loses h-4.
Click to expand...


UN, my wife came here on H4 and changed her status to H1B and working for a company. My 140 is approved and 485 is pending. I have EAD/AP for both of us but never used them. We are planning for a vacation to India. I have my H1B visa stampled on my passport and she has H4 stamped.
I am planning to enter USA in H1B.

Is it safe for my wife to use AP at the POE as she changed her status from H4 to H1B?

Can she continue working on H1B after entering USA on AP.?

Does she needs to get H1B visa from US embassy (India) before she comes back?

Thanks in Advance
 
JS485 said:
UN, my wife came here on H4 and changed her status to H1B and working for a company. My 140 is approved and 485 is pending. I have EAD/AP for both of us but never used them. We are planning for a vacation to India. I have my H1B visa stampled on my passport and she has H4 stamped.
I am planning to enter USA in H1B.

Is it safe for my wife to use AP at the POE as she changed her status from H4 to H1B?

Can she continue working on H1B after entering USA on AP.?

Does she needs to get H1B visa from US embassy (India) before she comes back?

Thanks in Advance
Click to expand...

All very good questions/scenarios. I've seen a lot of misconceptions on these boards regarding these issues. Therefore, let's tackle them now.

From a global perspective this is how it works.

Having a valid h-1, h-4 allows one to stay in USA. H-1 allows person to only work with the company to whom h-1 belongs to.
Having a valid h-1, h-4 visa stamp allows one to enter the country.

Now let's say person gets EAD/AP.

If person still has a valid h-1, even if they complete I-9 with the same company using EAD they do not lose h-1 status (h-1 status will be lost if employer cancels h-1. Why would employer cancel h-1? Simply because bench time is not allowed and employer would have to pay prevailing wages. This liability to company is not there if they cancel h-1).

If person has a valid h-1 and uses EAD for a second job they do not lose h-1 status.

If person has h-1 but no visa stamp and they use AP to enter the country they do not lose h-1 status. AP has to do only with entering the country, nothing to do with work status.

If person is on h-4 with no visa stamp but they enter on AP, they do not lose h-4 status. They only lose h-4 status if the primary applicant's h-1 gets cancelled.

If person switches from h-4 to h-1 and they use AP to enter the country they do not lose h-1 status.

Lots of scenarios but to summarize it. Using AP to enter the country has nothing to do with work authorization (h-1, h-4). Only risk of using AP is if you are out of the country and 140/485 gets denied then Ap gets denied and you will not be able to enter the country unless you have valid h-1, h-4 visa stamp.
 
unitednations2 said:
All very good questions/scenarios. I've seen a lot of misconceptions on these boards regarding these issues. Therefore, let's tackle them now.

From a global perspective this is how it works.

Having a valid h-1, h-4 allows one to stay in USA. H-1 allows person to only work with the company to whom h-1 belongs to.
Having a valid h-1, h-4 visa stamp allows one to enter the country.

Now let's say person gets EAD/AP.

If person still has a valid h-1, even if they complete I-9 with the same company using EAD they do not lose h-1 status (h-1 status will be lost if employer cancels h-1. Why would employer cancel h-1? Simply because bench time is not allowed and employer would have to pay prevailing wages. This liability to company is not there if they cancel h-1).

If person has a valid h-1 and uses EAD for a second job they do not lose h-1 status.

If person has h-1 but no visa stamp and they use AP to enter the country they do not lose h-1 status. AP has to do only with entering the country, nothing to do with work status.

If person is on h-4 with no visa stamp but they enter on AP, they do not lose h-4 status. They only lose h-4 status if the primary applicant's h-1 gets cancelled.

If person switches from h-4 to h-1 and they use AP to enter the country they do not lose h-1 status.

Lots of scenarios but to summarize it. Using AP to enter the country has nothing to do with work authorization (h-1, h-4). Only risk of using AP is if you are out of the country and 140/485 gets denied then Ap gets denied and you will not be able to enter the country unless you have valid h-1, h-4 visa stamp.
Click to expand...

you are simply the best UN. Thanks
 
Consulted a attorney and here are my findings ...

This communication took place between me (H1B holder) and my attorney. This communication should clear all doubts regarding H4 to EAD to H4


If the I140 or I485 (applied by COMPANY_B) gets rejected...

Q: Does she have to go to India for H4 stamping or can she just revert back to H4 status without going outside the country?

A: The mere fact that she files the I-485, I-131 and I-765 does not in any way impact her claim on H4 status, nor does the approval of the I-131 or I-765. It is the use of the advance parole from the I-131 approval or the EAD from the I-765 approval that automatically moves her from H4 status to pending I-485 status. If she used either of those documents and then her I-485 is later denied, then she would lose the I-485 claim to remain here and the advance parole and EAD would be terminated too. Assuming that you continued to maintain H1B status, she could herself regain H4 status. You should assume that she would depart the US, apply for the H4 at a consulate, and then return after it is granted. This could be done back home, but probably could also be done in Mexico or Canada.

Q: If she has to go to India, can the U.S consulate refuse to grant her H4 visa because her 6 yrs of H4 are already over? Can the consulate ask her to stay away from the U.S for a year before granting her H4 visa?

A: Note: if you continue to enjoy H1B status in annual extensions beyond the 6th year; otherwise yes.

Q: What if she is working on EAD (and she doesn’t have a valid H4 status anymore) and the I140 gets rejected. What happens then?
E.g. the extension COMPANY_A recently applied is good for a year. Assuming it gets over on June-30-2005. Sometime before then, COMPANY_A will again apply for my (and my daughters) H visa extension. Should we also apply for my wife’s H4 visa extension though she is working on EAD? If not then she will not have a backup H4 and under those circumstances what happens if the I140/I485 gets rejected?

A: See above. Note that she does not need an H4 extension to apply for the H4 abroad. What she needs is your H1B to remain valid. Therefore, your H1B is effectively her backup route to the H4. BTW, technically it is the I-485 denial that impacts her, not the I-140.
 
does it mean if H4 dependent spouse of H1 holder starts working on EAD , s/he can come back to H4 status without leaving USA, assuming both have applied for AOS??
 
unitednations2 said:
All very good questions/scenarios. I've seen a lot of misconceptions on these boards regarding these issues. Therefore, let's tackle them now.

From a global perspective this is how it works.

Having a valid h-1, h-4 allows one to stay in USA. H-1 allows person to only work with the company to whom h-1 belongs to.
Having a valid h-1, h-4 visa stamp allows one to enter the country.

Now let's say person gets EAD/AP.

If person still has a valid h-1, even if they complete I-9 with the same company using EAD they do not lose h-1 status (h-1 status will be lost if employer cancels h-1. Why would employer cancel h-1? Simply because bench time is not allowed and employer would have to pay prevailing wages. This liability to company is not there if they cancel h-1).

If person has a valid h-1 and uses EAD for a second job they do not lose h-1 status.

If person has h-1 but no visa stamp and they use AP to enter the country they do not lose h-1 status. AP has to do only with entering the country, nothing to do with work status.

If person is on h-4 with no visa stamp but they enter on AP, they do not lose h-4 status. They only lose h-4 status if the primary applicant's h-1 gets cancelled.

If person switches from h-4 to h-1 and they use AP to enter the country they do not lose h-1 status.

Lots of scenarios but to summarize it. Using AP to enter the country has nothing to do with work authorization (h-1, h-4). Only risk of using AP is if you are out of the country and 140/485 gets denied then Ap gets denied and you will not be able to enter the country unless you have valid h-1, h-4 visa stamp.
Click to expand...

UN,

You are right that just usage of AP doesn't invalidate the h1 or h4. However if a person has moved from h1 or from h4 to a job on EAD and then goes out of the country and enters in using AP, does the respective h1 or h4 status remain valid ?? At least for h4 the answer is NO. In the past I had had a specific discussion with my attorney on h4 and this is what i was told: If you are on h4 and avail of EAD and take up a job, your h4 status is no more valid, that is the precise reason when you move to EAD from h4 you have to have a AP to enter back in the country ( it is a different matter if at port of entry the concerned officer allows you in on a valid h4 visa stamp intentionally or by mistake ) , but you could be refused entry on h4 visa stamp and need AP to enter. Pl let me know if you have a different view on this. I guess same would be the case with h1 also .
 
Question for all ye Gurus

I have an interesting question :

H1/H4 of spouse and self expiring on 31st October.
I Intend to start using my EAD.
First EAD valid till 18th November for both spouse and self.
Applied for extension for both in July end. Rcvd only my EAD extension till Aug 2005.
In spouse case have'nt even rcvd the Rcpt notice. My question is come Nov 19 if we have not rcvd her EAD extension will she be out of status.

Also point to note is that she has not used the EAD she has currently.

Pls let me know.

Rgds,

Yeppo
 
Question for gurus

I have an interesting question :

H1/H4 of spouse and self expiring on 31st October.
I Intend to start using my EAD.
First EAD valid till 18th November for both spouse and self.
Applied for extension for both in July end. Rcvd only my EAD extension till Aug 2005.
In spouse case have'nt even rcvd the Rcpt notice. My question is come Nov 19 if we have not rcvd her EAD extension will she be out of status.

Also point to note is that she has not used the EAD she has currently.

Pls let me know.

Rgds,

Yeppo
 
yeppo said:
I have an interesting question :

H1/H4 of spouse and self expiring on 31st October.
I Intend to start using my EAD.
First EAD valid till 18th November for both spouse and self.
Applied for extension for both in July end. Rcvd only my EAD extension till Aug 2005.
In spouse case have'nt even rcvd the Rcpt notice. My question is come Nov 19 if we have not rcvd her EAD extension will she be out of status.

Also point to note is that she has not used the EAD she has currently.

Pls let me know.

Rgds,

Yeppo
Click to expand...

Yeppo,

Your spouse would be in status even if her EAD is not received by Nov or for that matter even if she never gets another EAD. EAD doesn’t give a status, it is the pending 485 that gives status .. so as long as the 140 and /or 485 is pending and doesn't get rejected both of you are in status.
 
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