Advance Parole with H4 stamping

[pathan]

Hi,

Can Murthy Forum members please advice on below situation regarding my marriage while I am on Advance parole?

Here is my whole information:

• Valid H1b till March-2013.
  
• Old H1b stamp expired on Jun-2009 and never went to India last 4 years
  
• Got Receipt of I-485, Advance parole and EAD yesterday.
  

I want go to India for my marriage after getting my Advance parole (AP). AP might be come in next 2 months. I have following questions to ask you. Really appreciate if you can reply me in my critical situation.

1. If I go to India on Advance parole. Is it possible for my wife to come USA on H4 Visa? And how can I add my wife name in green card process as I will be on Advance parole.
   
2. If H4 visa is possible for my wife then should I send her to Mumbai consulate for H4 stamping after I return back to USA OR when I am on India?
   
3. If I send her for H4 stamping after I return back to USA using AP then I have I-94 with AOS status not H1b. and I have to send my I-94 for her H4 stamping. is it create any RFE or issue for my wife H4 stamping as I am on “ADJUSTMENT OF STATUS” and have H1b stamp expired on Jun-09
   
4. Should we come together to USA after marriage? OR my wife has to come USA first?
   
5. If we come together to USA. Is there any issue on Port of Entry as I am on AP and my wife on H4 visa?
   
6. If after my marriage H4 visa is not work out to come USA for my wife then what is the alternative option to come USA as my wife do not have bachelor degree so I can not apply for H1b or student visa.
   
7. What is “follow to join” rule?
   

Thank you

[Belle]

You don't go to India "on AP". You go to India with your Indian passport. You go to the US on AP. Your wife's name is not "added" to your AOS. She will file her own I-485. From you, she only needs your I-485 receipt and a job letter.

Now, your question of whether you will truly be on H1 after entering the US on AP, and whether H4 entry for her is allowed. It's a good question, and different lawyers may answer it differently. It is not very clear whether you are truly in H1 status after entering on AP, however, it is actually a different question whether your wife may enter on H4 because your H1 approval remains valid even if you are not truly in status. For example, your wife may enter the US on H4 even if you are not in the US at that moment - that means that you don't have to be in H1 status for your wife to be able to enter and maintain H4. So, if you are really particular about it, you may ask your wife to get stamped and enter then US while you are not in the US. This way, there is no good argument thatyou were not in stastus. One thing I would recommend is that if you fly to the US on the same flight, go to different immigration lines for inspection. Even though a qualified lawyer may successfully argue that you may enter on AP while your wife on H4, the immigration officer is not a lawyer, and he follows instructions, which probably completely leave your case out, so it is all up his/her discretion, and it would be really hard to argue with them because you can't really appeal their decision.

[pathan]

Thank you for reply, but I have discussed with my employer’s lawyer. He told me Advance parole use only for travel purpose, it is not terminate your H1b status at all. If you use EAD in employment instead of H1b then you are out of H1b status, so if you use AP at POE then you still have valid H1b status so you can enter with your wife with H4 visa because I will not use my EAD in employment instead of H1b.

My employer’s lawyer told me that first your wife has to enter in POE and you have chosen other immigration line to enter after your wife.

I have still some confusion, please explain me in detail with above my questions’ s anwers.

[Belle]

Thank you for reply, but I have discussed with my employer’s lawyer. He told me Advance parole use only for travel purpose, it is not terminate your H1b status at all. If you use EAD in employment instead of H1b then you are out of H1b status, so if you use AP at POE then you still have valid H1b status so you can enter with your wife with H4 visa because I will not use my EAD in employment instead of H1b

Except, it is not clear whether you will be using that EAD for work or not. That's the whole point. The lawyer does not 100% know if you will be considered to be in status on H1. And if you will not be, then at least your work for your H1 employer is not unauthorized after entry because you have an approved EAD.

Read my perious answer one more time. The gist is - it's a two fold problem, first, because it is first not clear whether you will be on H1, and second whether you must be present in the US on H1 for your wife to be in status on H4. Neither of those questions have a clear answer from the courts.