H4 - EAD Status , as the primary H1-B petition denied during employer change

[seeni81]

Hello All,

I am posting this question on behalf of my friend.

My friend was working on H1-B with I-140 approved. Her spouse has a valid EAD until 2019. My friend recently changed the job and after 9 months of the petition, it was denied and he left the country in a week and then his employer filed another H1-B petition in premium and got it approved and he has still not returned from India.

My question is.

1. Does my friend spouse also lost her status while the transfer petition was denied? Does she needs to apply another H4 and H4-EAD to be able to work?

Or since she already had H4 status, can she retain the old H4-EAD?

Please can someone clarify me on this?

Thanks in advance.

Regards,
Sree

[Trinity71]

Hello All,

I am posting this question on behalf of my friend.

My friend was working on H1-B with I-140 approved. Her spouse has a valid EAD until 2019. My friend recently changed the job and after 9 months of the petition, it was denied and he left the country in a week and then his employer filed another H1-B petition in premium and got it approved and he has still not returned from India.

My question is.

1. Does my friend spouse also lost her status while the transfer petition was denied? Does she needs to apply another H4 and H4-EAD to be able to work?

Or since she already had H4 status, can she retain the old H4-EAD?

Please can someone clarify me on this?

Thanks in advance.

Regards,
Sree

The only way someone can be legally present here on an H4 visa is if there is an active H1 visa holder here working. Therefore, she has been out of status, accruing unlawful presence since the H1's petition was denied and he left the country. She should have left at the same time as her husband did and it is curious as to why she did not.

Regardless of the new approved H1 petition, she cannot be here without the H1 and should leave the country immediately. I am not sure if she would be able to come back to the U.S. or re-apply for the H4 visa at all as usually, when someone stays here illegally by overstaying their visa, they can be banned from returning to the U.S. for somewhere between 3 to 10 years.

This is my opinion and not legal advice. Use of this information is strictly at your own risk.

Trinity71

[inadmissible]

Under the January 17th 2017 rule published in the Federal Register, H visa holders will get 60 days grace in order to acquire new status or depart without accruing unlawful presence. Depending on how long the H-4 holder has been out of status, it might be easiest for her to file a H4-to-H4 change of status with respect to her spouses new H-1B status