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shakersinha
02-22-2009, 01:44 PM
We have filed our I-485, I-765 (EAD) and I-131 (Travel Document) petitions along with my I-140 petition in August'07. Since my I-140 was pending and I switched my employer (by transfering my H1-B) after 180 days of our filing, we did not use our EAD's. My new employer has also applied for my spouse's H-4 extension which is valid till April 2011.

The EAD's and the Travel Document's that we received intitially have expired late last year and we have also not renewed them since my I-140 petition was pending and were not sure about the out come. Since, we were not planning to use our EAD's until my I-140 petition got apprvoved, my spouse was searching for jobs with a precondition that her potential employer should file for her H-1b petition. She found a boutique firm that was willing to do her H-1b because she had some good experience back in India. They told her that they would find projects for her and place her at their client locations. The only pre-condition they mentioned was that they would start paying her only after she gets placed on her first assignment. We thought it was ok because they had large client base. They have applied for her H-1b visa during last year's H-1b quota in April'08. Her petition got approved with a start date of October 1st 2008.

Since her parents were in US and my job required travel, she told them that she could not start until December and checked with them if that was ok. They were ok with it then. But after December, since the market went down, her employer was not able to find her any projects. They called her recently and told her that they were planning to with draw her H-1b petition.

She had not signed a single document with her employer so far. She had forwarded her passport copies along with her previous experience certificates and her degree certificates to the boutique firm in order for them to file her H-1b petition. She has not even signed the I-9 form with them.

With all this that had happened so far, I have a few questions regarding her current status. Is she still considered to be on H-4 status because she had not signed any forms with the firm that sponsered her H-1b and not even got paid once? Or is she in H-1b status from October-1st 2008? If she is in H-1b status and she did not get paid even once.. does it make her out of status? Also, please note that her I-485 petition is still pending with TSC which would also have her in adjustment status.

Would there be a problem if her firm withdraws her H-1b petition? What happens to her status if they withdraw her petition. Do we need to file for her change of status again to H-4 to ensure that there are no issues with her status or is it not necessary as she had actually did not start with the new employer.

A friend of mine had suggested to go out of the country and comeback using her h-4 visa to ensure that she is back on H-4 visa but her current visa has expired in her passport although she has H-4 valid till April 2011. So going out of the country and coming back on H-4 is not an option.

We are now planning to apply for our EAD's amd Travel Document's because of all this and she is planning to search for job openings using her EAD. Also, she is planning to go out of the country and come back using Advance parole after her I-131 gets approved.

Please advise!
Sinha

copsmart
02-22-2009, 05:12 PM
Your spouse is currently on H1, however, she is not considered as out-of-status because of her pending AOS.
H4 is not an option for her, since she is planning to look for a job. She can legally stay in this country and look for a job after receiving her EAD.

The only catch here is your concurrently filed I-140. If the pending I-140 is denied for any given reason, then you will be okay because of your H1, however she will be out-of-status at that point. So, she may have to go back to home country and apply for a new H4.

I hope you have a better understanding of AC21 provision. The reason Iím saying this is because, it is not advisable to change jobs before I-140 is approved, even you have crossed the 180 day mark.

BTW, I would consult an immigration Attorney to make sure your spouse status is legal.



We have filed our I-485, I-765 (EAD) and I-131 (Travel Document) petitions along with my I-140 petition in August'07. Since my I-140 was pending and I switched my employer (by transfering my H1-B) after 180 days of our filing, we did not use our EAD's. My new employer has also applied for my spouse's H-4 extension which is valid till April 2011.

The EAD's and the Travel Document's that we received intitially have expired late last year and we have also not renewed them since my I-140 petition was pending and were not sure about the out come. Since, we were not planning to use our EAD's until my I-140 petition got apprvoved, my spouse was searching for jobs with a precondition that her potential employer should file for her H-1b petition. She found a boutique firm that was willing to do her H-1b because she had some good experience back in India. They told her that they would find projects for her and place her at their client locations. The only pre-condition they mentioned was that they would start paying her only after she gets placed on her first assignment. We thought it was ok because they had large client base. They have applied for her H-1b visa during last year's H-1b quota in April'08. Her petition got approved with a start date of October 1st 2008.

Since her parents were in US and my job required travel, she told them that she could not start until December and checked with them if that was ok. They were ok with it then. But after December, since the market went down, her employer was not able to find her any projects. They called her recently and told her that they were planning to with draw her H-1b petition.

She had not signed a single document with her employer so far. She had forwarded her passport copies along with her previous experience certificates and her degree certificates to the boutique firm in order for them to file her H-1b petition. She has not even signed the I-9 form with them.

With all this that had happened so far, I have a few questions regarding her current status. Is she still considered to be on H-4 status because she had not signed any forms with the firm that sponsered her H-1b and not even got paid once? Or is she in H-1b status from October-1st 2008? If she is in H-1b status and she did not get paid even once.. does it make her out of status? Also, please note that her I-485 petition is still pending with TSC which would also have her in adjustment status.

Would there be a problem if her firm withdraws her H-1b petition? What happens to her status if they withdraw her petition. Do we need to file for her change of status again to H-4 to ensure that there are no issues with her status or is it not necessary as she had actually did not start with the new employer.

A friend of mine had suggested to go out of the country and comeback using her h-4 visa to ensure that she is back on H-4 visa but her current visa has expired in her passport although she has H-4 valid till April 2011. So going out of the country and coming back on H-4 is not an option.

We are now planning to apply for our EAD's amd Travel Document's because of all this and she is planning to search for job openings using her EAD. Also, she is planning to go out of the country and come back using Advance parole after her I-131 gets approved.

Please advise!
Sinha

shakersinha
02-22-2009, 06:32 PM
Thanks Copsmart! So you are saying that currently my wife is on H-1b status even though she did not actually worked for that company yet. I wish they considered her as being on H-4 status. BTW, while applying for EAD, what should I put in for question 15 (current immigration status) on form I-765? In her initial EAD that got approved in October'08, she had this answered as H4 - Dependent. Do I have to put in H-1 there or can I put in H-4 or AOS instead? Thank you!

wandmaker
02-23-2009, 12:06 AM
thanks copsmart! So you are saying that currently my wife is on h-1b status even though she did not actually worked for that company yet. I wish they considered her as being on h-4 status. Btw, while applying for ead, what should i put in for question 15 (current immigration status) on form i-765? In her initial ead that got approved in october'08, she had this answered as h4 - dependent. do i have to put in h-1 there or can i put in h-4 or aos instead? thank you!

h1

chaanakya
02-23-2009, 12:21 AM
Hi there

This situation is not that complex. Here are the basics:

1. Your wife is currently present in the US legally, her status is AOS pending with you as the principal applicant.

2. Your wife's H1b status is no longer valid, since she has no paystubs, the employer-employee relationship never existed. Her employer can withdraw her petition. It is somewhat hard to believe that the employer filed for H1b without getting a contract signed first. But either way, if you say you knew nothing about this, an email trail or something might lead back to you. Not advisable to sour the relationship there.

3. If you want your wife to be on H4, she can get a visa from India anytime since your H1b is perfectly valid. That is one of the simpler ways to get her on H4. You can also apply for a change in status to H4 within the US.

Hope that clears up any confusion :)

shakersinha
02-23-2009, 01:36 PM
Hi there

This situation is not that complex. Here are the basics:

1. Your wife is currently present in the US legally, her status is AOS pending with you as the principal applicant.

2. Your wife's H1b status is no longer valid, since she has no paystubs, the employer-employee relationship never existed. Her employer can withdraw her petition. It is somewhat hard to believe that the employer filed for H1b without getting a contract signed first. But either way, if you say you knew nothing about this, an email trail or something might lead back to you. Not advisable to sour the relationship there.

3. If you want your wife to be on H4, she can get a visa from India anytime since your H1b is perfectly valid. That is one of the simpler ways to get her on H4. You can also apply for a change in status to H4 within the US.

Hope that clears up any confusion :)

Chaanakya,

Thanks for your response! So you are saying that if my wife has never receieved a paystub from her employer then, the employer-employee relationship never existed and she is on Adjustment of Status. But you think she is certainly not on H-4 status as she got her H-1b approved. It should not matter to us as long as she is still in legal status either on AOS or H-4.

We are not asking the employer to terminate her H-1b petition. The employer has given us 30 day notice and mentioned that they were planning to withdraw her petition. So I dont think there will be any sour grapes there.

I'm planing to file for our EAD's and Advance Parole documents and while filling the I-765 form, for question 15 (current immigration status), I was planning to put H4-Dependant status for my spouse's petition as she never started her employment with the firm that sponsored her H-1b. Would that be a problem? Also, is it ok to fill in her current immigration status as Adjustment of Status? I mean does USCIS recogonize AOS as valid immigration status? Please advise!

pbojja
02-23-2009, 05:16 PM
Hi there

This situation is not that complex. Here are the basics:

1. Your wife is currently present in the US legally, her status is AOS pending with you as the principal applicant.

2. Your wife's H1b status is no longer valid, since she has no paystubs, the employer-employee relationship never existed. Her employer can withdraw her petition. It is somewhat hard to believe that the employer filed for H1b without getting a contract signed first. But either way, if you say you knew nothing about this, an email trail or something might lead back to you. Not advisable to sour the relationship there.

3. If you want your wife to be on H4, she can get a visa from India anytime since your H1b is perfectly valid. That is one of the simpler ways to get her on H4. You can also apply for a change in status to H4 within the US.

Hope that clears up any confusion :)

What is her status between H1 approval and H1 with drawal ?

chaanakya
02-24-2009, 03:08 AM
Lets say she is on H4. Files for a change of status to H1b which is approved and a new I-94 is issued which is valid from Oct 1. Hence, on Oct 1 H4 status is gone and H1b comes into play. Now, if you dont show up for work in a reasonable period of time (hence the grey area because the laws do not define what these reasonable periods mean), most lawyers recommend 30 days, you need to be on an unpaid leave of absence. Needless to say that the employer needs to agree for this, you need to have sufficient grounds to prove to the USCIS (if ever asked at an AOS interview or RFE) that your leave of absence was genuine and not an abuse of the H1b system.

Having said that, the complete answer to your question would be...From Oct 1 till Oct 30, your status is H1b. If you never reported for work and are not on an employer sanctioned leave of absence, then begining Oct 31 your status is AOS pending because now you have gone through 'n' pay periods without receiving wages or performing work for which the H1b was approved in the first place.

And yes, AOS pending is a valid status recognized by the USCIS. A very common example is principal applicant using EAD to switch jobs abandons H1b status, then the principal applicant and former H4 spouse are both in AOS pending status.

Thanks