Is the derivative has to re-enter in same status as primary while pending 485?

[canuck98]

Everyone - we have 485 pending and EAD/AP in hand. Spouse re-entered in H1-B status in april after applying 485 after quick trip abroad and getting EAD/AP approvals in feb/mar. her h1-b based I-94 expired in mid june. since then she has moved on to use EAD with her same H1-b employer. Primary has h1-b vaild till sep 2013.

Couple of questions.

1. In legal terms, Is the spouse out of status currently based on expired I-94? ( even though at the same time 485 pending and with valid EAD)

2. We are planning a week long trip abroad together and Planning on re-entering with primary on same H1 (valid till sep 2013) and derivative spouse on AP. Is this re-entry on different status for both harmful for the pending I-485 petition?

Appreciate any input.

[Belle]

1. Yes. However, the presence is legal based on a pending I-485.

2. No. It is not clear if a spouse can use H4 stamp while the primary enters on AP (H1 is based on H1), however, because AP is solely based on the pending I-485, nothing but a pending I-485 is needed for entry. Husband's H1 is solely based on his job.

[pontevecchio]

No to both questions.

[canuck98]

Senior members, Thank you for your input. I was thinking the same as well.

On point 2, I don't know why my lawyer is advising us to re-enter for both of us either on H1 or on AP. Even though our situation is straight forward but advice from our lawyer has our heads spinning.....

[Shurap1]

Primary will use H1B (should have valid H1B stamp in passport) and derivative who DO NOT have valid H4 stamp will use AP and get redirected to secondary inspection. Nothing to worry.

Well out of curiosity why both of you not entering on AP (unless the answer is keep H1B as backup if 485 gets denied blah blah)?