What happens to the spouse if they don't apply for AOS?

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I have a friend whose husband has a H1B and she has H4. If he applys for I140/I485 and does not apply for his wife at the same time of his application what status will she have when her husband is granted the green card? Does she have any status? She is currently a stay at home mom but still needs some status to stay in the country legally. Their children were all born in the US so they are not affected.

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My assumptions are,

As far as he maintains the H1B status (so the h4 extn too) both can be legally stay in the country untill a decission on I485 comes.

If the 485 approved and wife's I485 is not filed she cannot be in the h4 any more so probabily of out of status.

If the 485 is denied , he can go back to his H1B if he does not use the EAD (if he obtained one).If EAD used both wll be out of status.

Also always try to use the h1b visa whenever one enters to the US. if AP used he is treated as Parolee though he can continue work in h1b. But even if he used the AP he will be back to H1B status when he extends or transfer the H1B .

Bottom line is that do not use EAD and maintain the H1b status. and try to file i485 for wife as soon as priority date comes.

lady123

I have a friend whose husband has a H1B and she has H4. If he applys for I140/I485 and does not apply for his wife at the same time of his application what status will she have when her husband is granted the green card? Does she have any status? She is currently a stay at home mom but still needs some status to stay in the country legally. Their children were all born in the US so they are not affected.
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If he gets the approval of the I-485, and wife was not included, then she will be out of status. As the H1-B will not longer exist, and therefore the H-4 will no longer exist. And if she was not included, then she will have to leave the US when she is out of status, and it will take about two years before she can legally return to the US. Does not matter that the kids are US citizens.

But the bigger question is why was she not included as the spouse on the petition to begin with? Was that intentional by the husband?

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If he gets the approval of the I-485, and wife was not included, then she will be out of status. As the H1-B will not longer exist, and therefore the H-4 will no longer exist. And if she was not included, then she will have to leave the US when she is out of status, and it will take about two years before she can legally return to the US. Does not matter that the kids are US citizens.

But the bigger question is why was she not included as the spouse on the petition to begin with? Was that intentional by the husband?

Suzanne,

That is what I was worried about. I only mentioned the kids since she is the only one that would need to be included in the petition since the kids are already US citizens. I think she was not included because they would have to pay for her fees themselves and I don't think they understand all of the implications. I think the company her husband works for is paying for the costs associated with his petition only; which is usually the case. Thank you so much for your response... I will have her call the company attorney ASAP with that deadline looming just a week away.

Just on a side note do you know if they ever left the US and returned to Canada would they be abandoning their green card? My friends husbands company is moving to Texas from Colorado and they are thinking about a move to Canada as he might be able to work from home. So I am not sure they are thinking through all of the issues involved in the decisions they are making. This would likely be something they would pursue over the next year but depending on the date of his labor certification it might take longer than that to get things processed. It would be a real shame if they get one and then forfeit it by leaving.

Thanks a lot for your response!!!

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Specializes in Medical and general practice now LTC.
Suzanne,

That is what I was worried about. I only mentioned the kids since she is the only one that would need to be included in the petition since the kids are already US citizens. I think she was not included because they would have to pay for her fees themselves and I don't think they understand all of the implications. I think the company her husband works for is paying for the costs associated with his petition only; which is usually the case. Thank you so much for your response... I will have her call the company attorney ASAP with that deadline looming just a week away.

Just on a side note do you know if they ever left the US and returned to Canada would they be abandoning their green card? My friends husbands company is moving to Texas from Colorado and they are thinking about a move to Canada as he might be able to work from home. So I am not sure they are thinking through all of the issues involved in the decisions they are making. This would likely be something they would pursue over the next year but depending on the date of his labor certification it might take longer than that to get things processed. It would be a real shame if they get one and then forfeit it by leaving.

Thanks a lot for your response!!!

If they leave the US after obtaining their GC and haven't taken necesary precautions (if leave is temp there is a re entry visa that needs to be obtained) then it is classed as abandonment as GC is a permanent resident card and if not living in the US then not a permanent residnet. Why not work from home in Texas? I would recommend before they concider this that they wait and get their citizenship 5 years after their cards are issued.

As you said a shame if they get it and then abandon it

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