Working on GC EAD but get H-4 stamp

[kristeenjoseph]

Hi, I am currently working on H1B. My spouse and I recently received GC EAD/AP but my I-140 is not approved yet. My spouse is currently employed using the GC EAD. We plan to travel to our home country later this year and wish to get our H1B and H4 stamp. (We are choosing to get the stamp and not travel on AP since there is a risk of I-140 denial). I have a couple of questions regarding this

1) Will appearing for the H4 visa interview be problematic for my spouse since he is already working on GC EAD?
2) If his H4 is stamped and he re-enters the US using H4, how does that affect his GC-EAD? Can he resume work with his current employer once back?

[newacct]

I am not sure whether your spouse's I-485 would be considered abandoned if he enters on an H4 visa. 8 CFR 245.2(a)(4)(ii)(A-D) says that I-485 will be automatically abandoned if the person leaves the US while it is pending, unless they were granted Advance Parole prior to leaving and return on that Advance Parole to be paroled in, or they had H1b/H4/L1/L2/K3/K4/V status right before leaving and return with the relevant visa. The problem is that your spouse is no longer in H4 status (since working on I-485 violated his H4 status), so entering on H4 visa doesn't seem to satisfy any of those (he is not entering on AP, and he did not have H4 status right before leaving). On the other hand, his I-485 would definitely not be abandoned if he entered on AP.

If his I-485 is not abandoned, then entering on H4 doesn't affect his I-485 EAD. However, the moment he works on his I-485 EAD, he would immediately lose H4 status again, so there is no benefit of this over entering on AP.

[kristeenjoseph]

newacct Thank you very much for the response. I had emailed the attorney and heard back that the travel and return on H-4 won't abandon his I-485. I am also told that resuming work on the GC-EAD wont invalidate the H-4, and the visa stamp can be used for travel in the future as well as long as it is unexpired. I too was under the impression that working on GC-EAD would make him lose his H-4 status, but seems like it is okay with regards to the stamp.