EB2 PD current, spouse on H4 outside US, with a potential employer filing for her H1-B

[I485_helpneeded]

Hi,

A long time reader of the forums looking for some help. Tried to search for the exact situation, but couldn't find something, so creating a new post.

I am on H1-B(currently on my 6th year, that will end in Sep 2012). My employer filed for my green card under Eb2 category, with PD Nov 12th 2007, which has become current with the Dec 2011 bulletin.

Wife came in on H4 after marriage in Dec 2006. Switched to F1 in Feb 2009 and extended OPT ended Nov 1st 2012.

On Oct 31st before her OPT expired, we travelled back to home country(India) and got my h1B and her h4 stamped. Plan to get back to the US on Dec 26th. Now a few days after we left, the company she was interning with on OPT, sent her mail saying they have a full time position and are willing to file for her H1b.

Questions

a) My understanding is we can't file the I-485 till we are both back in the US and get the medical exam done. Is that correct?

b) Can her employer file for her H1B (new application not COS) while she's still in India to ensure the H1b cap is not met? If so, can she then use her H4 visa to enter, and then once her H1b is approved file for COS from H4->H1B? My reading on the matter suggests, that if the H1B gets approved while she is outside the US (or for that matter if it got approved after her return on H4), as long as its not filed as COS initially she would have to go outside and get an H1B stamp to resume work on H1b

c) What are the alternatives in this situation and the pros and cons of the same.

Should we wait to file the I-485 till her H1b status is approved? Depending on the answer to question b) above it might be best for us to enter US before the company starts her H1b under premium processing. Even in that case, should we wait for her H1-B to be approved before filing the i_485 together? Or can we file the i_485 using her H4 I-94 for AOS, and then still apply for H1-B? There's something called the last action rule, which says the last action of USCIS determines status, and not sure what happens if I485 gets approved prior/post to her H1B approval?

I understand we could file for I485 and EAD after reaching there, and have her start using that. But would prefer to have her independant H1b status, as a backup in case my I485 gets rejected ....

Appreciate any help the community can provide.

[I485_helpneeded]

>> Wife came in on H4 after marriage in Dec 2006. Switched to F1 in Feb 2009 and extended OPT ended Nov 1st 2012.

One error in my original post. The above line should read

Wife came in on H4 after marriage in Dec 2006. Switched to F1 in Feb 2009 and extended OPT ended Nov 1st 2011

[Belle]

1. Correct. One must be in the US to file I-485.

2. Yes. H1 petition may be filed (and often is) while the beneficiary is abroad.

3. Generally, 1) COS from H4 to H1, or 2) she may enter on H4, file for AOS, and start working once EAD is approved.

[I485_helpneeded]

Thanks Belle.

For 2) I am aware that the H1 petition can be filed, while away. What I wasn't clear about was in that case, if she enters on H4, can she file for a COS on a pre-approved H1-B. I tried to research that topic, but got conflicting views, with some saying the only way to start work on H1, if she enters on H4, and her H1B has been approved without COS, is for her to fly out and get an h1b stamp. Others seemed to say we could file for H4->H1b on her pre-approved h1b. Would appreciate if you could clarify that piece

For 3) are you suggesting, enter on H4 then have her company file for H1B? For that option, when can we file the I-485 for the two of us. Does it have to wait, till we get her H1b application approved. (assume premium processing, so a shorter turnaround)

Didn't want her to use EAD, in case my 485 got rejected/denied for whatever reason. Heard its taking about 3 months for EAD and about 10 months currently at the texas service center for 485. Assuming premium processing as 3-4 weeks, that gives a shorter turnaound to get her started working.

a) But the question is does the order of filing H1B/I485 and the order in which they get processed change things or it doesn't matter.?

b) If we were to have her enter on H4, then file for EOS (and EAD), can her employer then file for H1B while the AOS is pending? Is it recommended?

c) What happens when her H1B later gets approved, while the AOS is still pending? What's her status then? Can she start work immediately on H1B. I'm guessing if so, we need to notify USCIS of the change so that it can be applied to our 485 filing. ..

[Belle]

She may file for H1 COS after entering on H4. Not a problem. She may file I-485 at any point at this process. Those two things are somewhat independent of each other.

I personally would wait for EAD. There is no reason for her to take up a good H1 number if she can get other (and better) work authorization. If your I-485 is denied, I would assume you will appeal and will have your own H1 to fall back to. It's not like denials are given left and right with no apparent reason, anyway.

[I485_helpneeded]

Thanks for the response. Appreciate the help!!