Legal to stay in US for spouse after H1-B expire but primary applicant 485 is pending

[user855]

Hi -

My wife is currently on h1B but it might get terminated soon.

I am the primary applicant for the GC application and it is in 485 pending status for both me and my wife. My H1B is valid.

My understanding is that if her H1B gets terminated due to some reason she will fallback to AOS pending (485 pending) status.

Because of this fallback, she will continue to be able to stay within the US legally. Is this correct?

That is, she will lose her ability to work, but can stay legally inside US based on the pending 485 status.


Please confirm if this understanding is correct.

[newacct]

yes

[user855]

Thank you!

1. Is the above written in some UScIS policy manual somewhere? I am searching but unable to find it.
2. It seem GC EAD is taking about 1 year to process these days. So we expect the EAD to arrive by November October 2022. To give her protection in the interim do you recommend initiating an H4 application for her in the interim once she has gone past her H1B?

[Enub4]

1.- I think this is the information but I'm no expert:

https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-245/section-245.1

2.- "To give her protection", do you mean to continue working? I don't have experience with H4 and work authorization. Maybe if there is a priority processing for H4 and the work authorization it may arrive before the EAD (I-765 for AOS).

[newacct]

Going out of status while Adjustment of Status (I-485) is pending does not affect your eligibility for that Adjustment of Status. See USCIS Policy Manual, Volume 7, Part B, Chapter 4, section G:

For purposes of the bars to adjustment, a nonimmigrant only needs to maintain his or her nonimmigrant status until the time he or she properly files an adjustment application with USCIS so long as the nonimmigrant does not engage in any unauthorized employment after filing the adjustment application.

There is nothing explicitly saying that they cannot put someone with a pending AOS in removal proceedings, although they generally don't. However, in the unlikely chance you get put into removal proceedings, you can renew your AOS application there. See 8 CFR 245.2(a)(5)(ii):

[...] No appeal lies from the denial of an application by the director, but the applicant, if not an arriving alien, retains the right to renew his or her application in proceedings under 8 CFR part 240. [...]

She can file I-539 for Change of Status to H4 status if she wants. Immigrant intent does not affect H4.

[shiva_82]

Hi -

My wife is currently on h1B but it might get terminated soon.

I am the primary applicant for the GC application and it is in 485 pending status for both me and my wife. My H1B is valid.

My understanding is that if her H1B gets terminated due to some reason she will fallback to AOS pending (485 pending) status.

Because of this fallback, she will continue to be able to stay within the US legally. Is this correct?

That is, she will lose her ability to work, but can stay legally inside US based on the pending 485 status.


Please confirm if this understanding is correct.

Yes, your understanding is correct. She can continue to stay on the country legally. She can't work though (unless she has a EAD either through the 485 or if she converts to H4 and gets a EAD based on that)

[shiva_82]

The only problem with continuing to be in the country based on pending AOS is that if in the worst case the AOS is denied, your wife will be deemed out of status from when her H1 had expired and it might affect future entry into the country.

[newacct]

The only problem with continuing to be in the country based on pending AOS is that if in the worst case the AOS is denied, your wife will be deemed out of status from when her H1 had expired and it might affect future entry into the country.

They do not accrue unlawful presence while AOS is pending. "Out of status" does not mean anything in itself -- it is normal to be out of status while AOS/EOS/COS is pending. I don't see why it would affect their future ability to get an H4 visa or enter on H4.

[shiva_82]

They do not accrue unlawful presence while AOS is pending. "Out of status" does not mean anything in itself -- it is normal to be out of status while AOS/EOS/COS is pending. I don't see why it would affect their future ability to get an H4 visa or enter on H4.

Agreed but if their 485 is denied, then they will be seen as being out of status from the point their I94 linked with their previous valid status expires (which in this case is their H1.)

There is no issue with being in the country years together while AOS is pending and if the AOS is approved after that wait.

If they do accrue out of status stay then they will have to explain the reason and it will definitely be something that will be looked at when they try to enter the country again.

So it is always recommended to have a valid status at all times until GC gets approved.