from H4 to EAD

[baldev.thakur]

Hi Folks
My wife was working in India all this time and I am in US. H1 expires end of 2010. I believe I used up my extension .
I got my EAD and AP already after I filed for my 485 under Eb2.
My Question is , how long can she go on H4 ? Only till my H1. If she comes to US on H4 can I file her EAD or do I have to wait for the category to be current to do so .
Please advise.
Thanks
Thakur

[sunnymit]

Her visiting here on H4 depends on if you have started working on EAD. My lawyer told me that if I started working on EAD, then my H1-B is no longer valid which means that my spouse's H4 is no longer valid either.

As for filing for your wife's paperwork, you can only do that once the dates are current

Hope this helps...

[ameryki]

She can only apply and visit on H4 if you are on H1 at the time of her travel.

You can apply for her EAD once she is in the country provided you had filed for her 485 and it has been over 180 days past filing.

[sunnymit]

Originally Posted by ameryki

You can apply for her EAD once she is in the country provided you had filed for her 485 and it has been over 180 days past filing.

I didn't get this over 180 days past filing thing. Do you mean over 180 days of primary applicant's 485 filing or for the spouse? Meaning one has to file for 485 for the spouse and then wait for 6 months before applying for the EAD? Is that what you meant?

[baldev.thakur]

Actually I asked my lawyer when I was filing for my 485 if I could file for her .She was no in the US at that time so I was told that is not possible.
Given this fact that my extension is being used , what else can I do ? ( My H1 will now be 7 years old ending 2010 ) . Is it possible to apply for a 2 year extension again so that both can get H1 and H4 respectively OR Should I take a 1 year break - then apply for new H1 ? how does it work . If I am in India and EB2 becomes current , then what should I do .
I can find work anytime based on present situation.
But I dont know what options I have to get wife here ( or let her ct to stay here ) in case my H1 expires in 2010 ending ?

[ameryki]

Originally Posted by sunnymit

I didn't get this over 180 days past filing thing. Do you mean over 180 days of primary applicant's 485 filing or for the spouse? Meaning one has to file for 485 for the spouse and then wait for 6 months before applying for the EAD? Is that what you meant?

My bad Ari has corrected this below. Sorry!

[ImmigrationAnswerMan]

Baldev:

An H-1B can be extended beyond the 6th year where the beneficiary has had a Labor Certification or I-140 pending for at least a year. They can get one year extensions. Where they are the beneficiary of an approved I-140 they can get 3 year extensions.

A spouse is eligible for an H-4 for as long as their spouse is in H-1B status.

Working on an EAD will stop H-1B status. But just having the EAD does not mean that the person is working on the EAD. If the person is working in the H-1B position and has not executed a new I-9 with the EAD or traveled on an Advance Parole Document, then they would still be in H-1B status.

You cannot file an I-485 for a spouse until a visa is available under the DOS Visa Bulletin for the I-140. There is no requirement to wait 180 days before filing for the spouse. There is no requirement to wait 180 days before filing for EAD or AP. The spouse's I-485, EAD and AP can all be filed at the same time on the day that a visa becomes available under the petition.

*This information is for educational purposes only and should not be relied upon as legal advice. This information is not intended to create an attorney client relationship. This information should not be relied upon without consulting with an immigration law attorney.