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Immigration Issues/What happens if stay calm on my current H1 status which is still valid.


QUESTION: I'm on H1 since 1+ year never went to india to get h1b stamped and never worked too so no paystubs or w2. My husband who is on H1 got his perm approved and his priority date is 2007august(he got ported from eb3 to eb2 recently and that perm is also approved).
Now he is planning to apply for I140 and 1485(EAD) concurrently and he adds my name as dependent when applying for 485. My concerns are,
1. Can he apply for 140/485 concurrently.
2. Since he adds me also in his 485 form will there be any problem b'se of my status on H1 with no paystubs/W2. If there is a problem than what is the solution can I apply for COS back to h4 if so many are suggesting me to go to india and get stamped on h4.
  Question of going to india for H4 stamping raises if I apply for COS so do I really require COS or simply can we proceed with our I485 process.

Thanks a lot,

ANSWER: Dear Kirthi:
1) Your husband can apply for I-140 & I-485 concurrently only if the priority date is current (current PD is 01/01/2010 as per Visa Bulletin for Feb. 2012);
2)As you never worked on H1, technically your H1 is void/of no effect and you violated the visa status.  However, if you do not travel and process your GC there should not be any problem; COS to H4 would not be easy (USCIS may request information for lawful stay on H1 with your paystubs and/or W2) since you have been on H1 (without work) for over a year now - but you may give it a shot, if you want.

My suggestion, have a proper consultation with an attorney before you choose any option and/or make a decision.  
Best wishes,
Ajay Singh, Esq.  
845-784-1500 (Wk.) 646-807-4582 (Fax); AJASIN@GMAIL.COM

---------- FOLLOW-UP ----------

QUESTION: Thank you very much Ajay, this is really a great help.

I do have another follow-up question which is as follows.

. What happens if I don't apply for COS or go to india to get h4 stamping, instead I stay here on my valid H1(since i didn't receive any letter from USCIS saying that my H1 is revoked)and meanwhile my husband applies for his I485 and adds me as dependent, then will there be any problem? I mean will USCIS will ask for any other supporting doc's other than my passport, valid I94, visa doc's, marriage certificates, birth certificates, some medical results.etc(my question is will they ask any paystubs of mine b'se some people are saying that they might and some are saying they don't care b'se i'm dependent on my husband and since he is main applicant he need to show his supporting doc's not mine).

I really thank you very much for the information provided.

ANSWER: Answer to your query would be the same, Kirthi, as stated earlier. However, as for your concern, since you have an H1B and not H4 - USCIS may request evidence thereof.

So, just to be prepared seek professional help before going for an interview on your GC (if any) or responding to an RFE on your I-485 (GC application, if any.)

Best wishes,

---------- FOLLOW-UP ----------

QUESTION: Thanks Ajay,

Still I'm confused a lot, as per my understanding frm ur explanation I have only 2 choices.

. Going to India and get h4 stamped without mentioning about my H1(but in this case what if they ask whether i'm on h1 and ask for pay stubs)
. If stay on my H1 and my husband applies for I485 then in that case is there a 100% change of getting RFE, I mean do all dependent H1 applicants on I485 need to show pay stubs or it is random? Assume worst case of getting RFE and my case goes to consular processing then what happens?

 Yesterday we visited an attorney, he told that to go a head and apply for I485 without messing up with other things or best way is to enroll in some college as full time student and get f1(but acc. to me in that case also COS will be done automatically from h1 to f1 and there is a problem again)

Please suggest me which is a least risky way this matters to me a lot.

Dear Kirthi:
You certainly are not on a valid non-immigrant (H) status currently. However, considering you have an H1 visa with a validity date w/out supporting evidence (job, Pay stubs, etc.) you may be required to show these during processing of your I-485 through your spouse (would that be a 100% chance, well may be or may not be - it could be 50 - 50, or it may never pop-up and you may get an approval from the service center directly.)

Because it is an employment based petition on which you would be a derivative beneficiary, question regarding your valid status might come up. It is correctly advised by the attorney that you may enroll in a school/college full/part time and get an F1.  

I would again advise you to seek professional help before you take any step.  If you wish, you may contact our offices for further consultation; we have had cases with similar situations.

Best wishes,

Ajay Singh, Esq.  
845-784-1500 (Wk.) 646-807-4582 (Fax)  

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