I 485 denied as priority dates r not up

[kytopgear]

hi,

I am an Indian citizen applied for NIW , got i140 approved for both spouse and me. Them my lawyer mistakenly applied I765, I 131,I 485 for my spouse and me. my spouse EAD and AP were approved and he started working. recently we got his and mine I-485application denial stating that our priority dates are not current as our PD is 12/09. Can he still work on EAD?/is his H4 good if he is not planning to travel? can he apply for H1 now?what's his options? please reply--- we r lost---

[yourstruly]

I am an Indian citizen applied for NIW , got i140 approved for both spouse and me. Them my lawyer mistakenly applied I765, I 131,I 485 for my spouse and me. my spouse EAD and AP were approved and he started working. recently we got his and mine I-485application denial stating that our priority dates are not current as our PD is 12/09. Can he still work on EAD?

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Nope. If EAD was obtained due to 485, and 485 denied, then EAD is not valid anymore.

is his H4 good if he is not planning to travel?

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Absolutely. H4 is a non-immigrant status that has nothing to do with GC process. If he has a H4 VISA, he can travel without problem too.

can he apply for H1 now?what's his options? please reply--- we r lost---

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Absolutely. He can apply for H1. He can apply for 485 again once his priority dates are current. Not sure if the prior 485 denial affects that. You should consult a lawyer to clarify that aspect.

[gc485process]

Couple of things over here. Since he has been working on EAD.Your spouse would no longer be on H4. And is currently out of status.

However if and your spouse have valid H visas. best thing would be to go out of the country and come back on the H visa status. In that way you can apply for 485 when your dates again become current. I am not familiar with NIW process and when you can apply.

If he has been working on EAD for less than 6 months then the above would be a really good option. Since he would be covered under the 180 day rule violation which gives him some flexibility when applying for 485 again. As that would be overlooked. However if he has been working on EAD for more than 6 months and with this denail, then that is an issue which needs to be seen by an attorney.

You need an attorney's advice over here.

[kytopgear]

he has been working only the last 2 months. Our lawyer said his H4 is still valid. we r planning to apply for H1 now

[gc485process]

if i am reading this correctly then, You can apply for h1b for your spouse, but the change of status will not be done. Since he/she used EAD. Your spouse is currerntly out of status. The best action would be to go out of the country and come back in H4 status since you have valid h visas. . In that way there will not be any issues when applying for H1b and Change of Status. Your spouse cannot apply for Change of Status at this time from within USA .

[randy_gc]

check with another competent lawyer, may be from murthy.com.

once he works, H4 is gone

[kytopgear]

I scheduled an appt with sheela murthy for consultation.