Bringing Wife on H-4 if AP Used but working on H-1B

[dbaner1]

Hi I recently entered the country using AP. However, I'm still using my H-1B to work. My passport is not stamped with H-1B visa. I'm thinking of getting married within a year or so and was wondering whether a H-4 could be filed for her. I intend on entering the country again with an AP even after getting married and continuing to work with H-1. Would there be any objections from the consulate and questions be raised on why I'm still working on H-1 and I use AP as a means of entering US (and haven't used my EAD instead) & in turn this cause a problem for my spouse's stamping of the visa?

[txh1b]

It is a complicated case and not a simple one to answer or blow it off saying you are a parolee but not on H1b. The effect of this type of entry is still the same. You are a parolee and not on H1b.

If a person that holds H1b status enters on AP, the person does not hold a "status" based on the entry I-94 document which provides one proof of status. Also, the I-94 is issued for 1 year.

Though, work for a H1b holder is allowed even if one enters on AP based on the H1b approval, it is not a law but a guidance issued back in 2000 or so. This is the tough part. USCIS guidance cannot be construed upon as a law and it is always a good idea to have EAD for the period of authorized employment even if working for the same H1b sponsor.

When a person enters on AP, the person can just use the H1b approval document as an authorization to work in lieu of the EAD as per the memo. This is risky like I have pointed out earlier as it is just a guidance.

One could choose to get back on H1b status if a renewal/transfer is filed after the entry on AP or if one gets a H1b stamp and re-enters. This is essentially the last action rule in effect.

For you to bring your spouse on H4 status into the US, it is important that you get back on H1b status and not enter as a parolee as your status has to be H1b for a H4 to legally get a H4 stamp and be in the US. Entry on parole does NOT give you a status. A parole is just a period of authorized stay by the attorney general.

Talk to an attorney as it is not as simple as you thought it is.