I-485 filing while in H4 status when H1 applicant has already filed it

[tigerw]

Hello, I have an H1B and my I-485 application for change of status is pending for more than 6 months now. I am about to get marry and would like to know what are our options so she can work while my I-485 is pending. Also, what would happen to her status in the event that we get married and I then use my EAD. So here are my questions.

1) Can she file an I-485 while in H4 status to later apply for an EAD even though I already filed my I-485 ? Or can she only file the I-485 (while in H4 status) when my case (priority date) becomes current ? In other words, when can she file the I-485 if I have already done so ?

2) What happens to an H4 status when I use my EAD and she has not yet filed an I-485 application ? Does she loses the H4 status and needs to apply for AP?

3) Is it better to get married in the US and change the status to H4 or to get married at home and apply for an H4 visa ?

Thank you in advance.

[orion]

You need to hurry, if she is in US, get married asap and add her name to the AOS application. Talk to your lawyer immediately about the possibility of doing this.

[txh1b]

Is your PD current?

[tigerw]

No, my Priority Date is not current.

[txh1b]

You can only add a spouse when your PD is current. There are a few instances when a GC can get approved when PD is not current. If that happens, your spouse will not be able to get added on and get messy.

Just keep all docs ready to add her to the 485 and file for her immediately once the PD is current, if you are married. Until then, you cannot use EAD or AP if she wants to remain on H4.

[tigerw]

Thank you for your quick response. What about questions 2 and 3:

2) What happens to an H4 status when I use my EAD and she has not yet filed an I-485 application ? I understand she loses the H4 status, what status would she have? Can she apply for AP if wanting to travel?

3) Is it better to get married in the US and change the status to H4 (can enter with a tourist visa) or to get married at home and apply for an H4 visa ? What's the processing time and costs for an AOS to H4 ?

[txh1b]

2. She becomes illegal and out of status. No, she cannot have AP. You MUST NOT use EAD or AP and maintain H1b until her 485 is filed.

3. Get married at home and enter with a H4 visa. Entering US on a tourist visa with an intention to change status is not advisable.