Extending H4 after 2 years lapse

[vudu07]

I need some urgent help on this issue. Any suggestion or advice would be greatly appreciated.

 

We both (my wife and I) are on pending I-485 status. My wife has gotten her EAD a couple of times already, hoping to get employed. And as of now, her current EAD is valid for one more month. Although she never found a suitable employement, so she never used her EAD. I have been keeping my H1B valid all along, but have decided not to extend hers, when I extended mine, a couple of years ago. Therefore, her H4 status (and I-94) has expired since a couple of years now. She is currently on EAD, and also on a pending AOS, so I am not sure if she is considered out of status.

 

I want to apply for her H4 again along with my I-129 application for extension. We will be visiting our home county in January, and are hoping to get our visa stamping there. My question is whether or not I can apply for her H4 along with my H1B application at this time. If so, what do we write in her I-539 form for Current Nonimmigrant Status? And should I select "extension of current status", or "change of status". Not sure how either of those available options would apply in her case.

 

My reasoning tells me that, it shouldn't matter if her H4 is not current, because as a dependent she can get H4 anytime based on my valid H1B. Plus, we are planning to get visa stamp in our home country anyways.

 

Please advice. Thanks!

[pontevecchio]

There is nothing urgent about the matter. The next time you visit India get your H1 visa and her H4 visa and she can return in H4 status. Is there any reason why you want to do something which is totally unnecessary?

[vudu07]

Thanks pontevecchio.. but it would be helpful if you could answer some of my specific questions. To answer yours:

 

 

There is nothing urgent about the matter

The urgency is that my company is filing for my H1B extension now. And I wanted to file her I-539 along with my application, because I know it is recommended to file both together. This is the only thing that is currently delaying the process for my company.

 

Is there any reason why you want to do something which is totally unnecessary?

You mean filing her I-539 would be unnecessary? Wouldn't I have to do that now or later anyways? I throught it's better to have an approved H4 petition for her as well before we leave the country. The only thing then that would be left for both of us would be to get our visa stamping at the us consulate abroad.

[vudu07]

I would like to slightly change the question:

I understand now that filing the h4 extension application, I-539, may not be required if we are planning to go to the consulate in our home country for visa stamping together. The question now is that, since I chose not to extend my wife's H4 after she received her EAD a couple of years ago, which invalidated her non-immigrant status. Could not having a valid non-immigrant status since past couple of years create problems with her H4 stamping? It's not that her status was unlawful. She has been on pending I-485 status.

[pontevecchio]

H4 is a status and not a petition. She can get a H4 visa and based on your approved H1 petition come back. Awaiting AOS is by orders of the AG, the highest law enforcement officer in the USA. Why do you think  H1 and H4 status is necessary.? If your AOS is denied you have bigger problems . H4 extensions are status extensions based on your valid status. Your extension is based on an approved H1 petition which will give you status.

[vudu07]

Sorry, but I am still not clear on the answer to my specific question.

 

The question now is that, since I chose not to extend my wife's H4 after she received her EAD a couple of years ago, which invalidated her non-immigrant status. Could not having a valid non-immigrant status for past 2 years create problems with her H4 stamping?

I don't think H1 and H4 status is necessary, we just chose H1/H4 over AP because AP would cost us $360 each and its travel validity is 2 years, whereas H1/H4 is a little cheaper in comparision and its travel validity is 3 years (for pending AOS).

[pontevecchio]

The answer is "NO'. You should be sure you have no problem with the H1 visa based on your situation. Her H4 is automatic if you get your visa. The reason for AP is the possibility of the H1 visa being delayed or denied.

[vudu07]

That's what I thought too..

Thanks for all your help pontevecchio.. I am grateful.. :-)