Baby born in India while on AP

[na104]

I am on EB3 status with priority date Aug 2006. Completed 6 years in H1. Working on EAD/AP now. My wife went to India while she was pregnant using her AP to attend her sister's wedding and was suppose to come back here for delivery. But while in India, her pregnancy became complicated and Dr's have advised her not to travel still she gives birth to baby. So now the baby will be born in India.

Since I am on AP, I don't think I can sponsor any visa for new dependents.

Is there any way possible to bring my to be born child back to USA after the baby is born. Do I have any options? Since it is a medical emergency, any humantarian ground options available?

Please advice guys, Thanks in adance for all the help.

[JoeF]

Once your GC gets approved, you can file for follow-to-join for the child.

Or, you could go back to H1, then you could get an H4 for the child.

These are the only options I see.

[Belle]

You can try to apply for a visitor visa for the baby, and then talk to a lawyer to see your options.

[na104]

Thanks for the reply!

JoeF - I think can't go back to H1 as I have completed 6 years on H1

Belle - will it be easy to get visitor visa for the baby when both parents have immigration petition pending?

[JoeF]

Hmm, with an approved I-140, you should be able to get 7th+ year H1 extensions.

[shandan]

Yes, with an approved I-140 you can get extention for H1B beyond the 6th year. I have got it for 3 years.

[Belle]

I really don't know about the visitor visa. Technically, it should be denied. However, who in their right mid would deny a visa to a baby given that there is really no other way the child can be with both parents? You will be relying on officer's discretion.

[na104]

Hmm, with an approved I-140, you should be able to get 7th+ year H1 extensions.

I completed 6 years on H1 in 2009..and working on EAD since then..Can I still go back to H1?I heard that one can't goback to H1 after they have started working on EAD

[na104]

I really don't know about the visitor visa. Technically, it should be denied. However, who in their right mid would deny a visa to a baby given that there is really no other way the child can be with both parents? You will be relying on officer's discretion.

thanks belle..if I don't see any other options, this is going to be my last resort...

If I switch my case to Eb2 now, can we add spouse and dependent names who are in India?

[Belle]

There is no such thing as "addding names". One needs to file CP or AOS, and each application is considered independently. You have stated that your wife is in possession of an AP, which means that her I-485 is pending, and thus she is already set. The only question is your child. You may file for the child's AOS if the child comes to the US legally (not sure about visitor visa, but you need to ask a lawyer) and the PD is current. Otherwise, you may sponsor the child through CP after your approval if the child resides outside of the country.

You need help of an attorney. This is not a situation where the solution is going to be easy, and it is not a DIY job.

[JoeF]

I completed 6 years on H1 in 2009..and working on EAD since then..Can I still go back to H1?I heard that one can't goback to H1 after they have started working on EAD

My understanding is that the 7th+ year stuff would apply in such cases as well.

You may want to discuss this with your lawyer.

[na104]

My understanding is that the 7th+ year stuff would apply in such cases as well.

You may want to discuss this with your lawyer.

I have appt with Murthy telephone consultation tomorrow..will check with them..

even if I can goto H1 back..will it has to be new H1 or I can extend my old H1..

If it has to be new H1, I guess, I have to wait for 1 year, as this year's quota is already over..

Will completing part time Masters program from US univ make one eligible to apply under extra 20K visa? I completed part time MBA last may...

[JoeF]

It is 7th+ year H1, i.e., an extension of the old H1.

[na104]

It is 7th+ year H1, i.e., an extension of the old H1.

Is it possible, even though I didn't extend my old H1 since 2009?

Thanks for being patient with me and answering all my questions.

I have appt with Murthy lawyer for telephone consultation.

Do u know any specific question I should ask him related to my case apart from summarizing my situation?

[Belle]

Get as much background as possible on your H1, all of the dates, when you started, when the last I-94 expired, when I-140 was approved, etc. If possible, ask your company if they will be willing to file your H1. If not, get the answer from the lawyer first, and then go your boss (or your boss's boss) and ask for a favor. Ask the lawyers about other options. Don't be discouraged if you will have to skirt the rules here and there, but be cognizant of anything that can't be fixed in the future. For example, if your child overstays a visitor visa, s/he will not be subject to entry bars, meaning that you can still do following to join for him/her. Some things are more important than adhering to stupid rules to a tee. Helping your child to take first steps is one of them. Good luck!

[na104]

Thanks Belle.

I had telephonic consul with Murthy..

Since my i140 is revoked by old employer after I did AC21 to new emplyer..

They gave me following option:

1. Extend H1 using my labour and i485 for 1 year..

2. Apply new EB3, after new i140 is approve, file H1 for 2 years extension..

3. Apply new Eb2 as my EB3 dates are current and join family members while filing i485..unfortunatley my employer doesn't want to do new EB2 but he may be ok doing EB3..

4. I can try visitor visa..getting visitor visa will depend on the person at the consulate

[Belle]

If you are working on extending H1, you can tell at the consulate that you are planning to enter on B and then file a COS or H4 for the as soon as H1 is approved. Basically, in circumstances when it is painfully clear that the baby will be going to live with the parents in the US, the officer needs a plausible excuse to maintain the decorum of issuing a visitor visa.

[na104]

Thanks Belle - baby is still not born..I have atleast 4 months with me to start the process..hopefully by then I should have some status to bring the baby to USA..

[Belle]

Talk to a doctor one more time. Pregnant women usually can travel up to 36 weeks, and air travel on it's own is not considered to be harmful or labor inducing. Chances that your wife goes into the labor in the 18 hours she is on the plane are pretty small. Even if she does, with the first pregnancy, you should expect at least 10 hours of labor, so chances are she will be safely on the ground by the time the baby is born. Also, I would imagine that on a large plane from India to US there will be at least one doctor. Just think it over.

[na104]

Belle, My wife's pregnancy is very complicated.....we almost lost the baby..consulted multiple Drs(including her Dr isn US), all of them advised complete bed rest..no travel whatesover..always close to hospital..

By asking my wife to travel, I will be putting my wife's life also in danger if she gets labor on flight and doesn't get medical attention within 2 -3 hours..And for me, life comes above everything else..

I will try every possible options to get my family here after baby is born..if nothing works out, I will go back..but don't want to take chance with life...

Thansk for all your help and guidance!.

[shandan]

Good Call!!!... Family trumps everything in life.

[Belle]

Na, I can certainly understand. Good luck!