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Ead To H1b After H1b 9 Years Expiration

Discussion in 'AC 21 H-1B Issues' started by Pulse_17, Dec 11, 2014.

  1. Pulse_17

    Pulse_17 New Member

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    We are in a typical situation.
    Before my marriage, I have approved I-140 (in 2006) and pending I-485 (applied Jul 2007) in EB3 from my previous employer
    I got 3 year extension (Nov 2008 - Oct 2011) after my 6 years limit.

    Series of things happened after this.

    - Got married in 2009, Came back to US on H1B VISA, couldn't add my wife since I-485 is already filed before marriage.
    - Later (in 2009) Wife came to US on H1B (with H1B stamping from US consulate in India) and is working on H1 B till now (through different employer)

    - I Was working on H1B with the same employer who filed my GC.
    - All my trips and work status was on H1B only, (even though had EAD and AP, didn't get need to use them)
    - USCIS approved my I-485 in Aug 2010 by error (thinking that I am under EB2 and my dates were current) and received GC
    - Approached local USCIS office via Infopass on three occasions, all the times they told not to worry as it is already approved, apply for my wife in F2A family category.
    - Took job with new company using GC to stay nearer to my wife (8 months after getting GC)
    - Applied I-130 for my wife under F2A, waiting for approval and dates to become current under F2A, didn't think of any employment based GC filing for my wife, as we have another path here.

    - Twist happened here in 2012 Aug, USCIS sent a mail saying that GC was issued due to clerical mistake and asked to return.
    - We returned the GC back and got EAD valid (Sept 2012 - Sept-2014), since my H1B was over by this time, started using EAD for my work by filling I-9.

    - Meanwhile wife's I-130 under F2A got approved and asked to file for next steps, replied USCIS that we are withdrawing the petition as my I-485 was approved by error. (by attaching all the necessary mails that we received)
    - My wife's employer started the process of GC for her this year, but after all the initial steps just before filing PERM, they withdrew the option due to the huge wage difference in the PWD and their expectation for the position.They didn't even file the PERM.
    - They can't re initiate the process with different position as my wife is just into 6th year of her H1B now.
    - They have different offer to my wife (once the 6 year limit reaches next year) to go back to India and join the branch there, as she has to leave after completing 6 years (next year).

    Now I have following questions.

    Q1: Is it possible for me to come back to H1B, so that I can bring my wife to H4 for her to stay in US, (to avoid her going back to India and stay there for one year to reapply for H1B and then come back), If Yes what are the options?

    Q2: I know it is too early to think of EAD for H4, but does my wife fall into this if Q1 is possible?

    The last time I came to US on a valid H1B stamping (of course, I-94 is expired by now)
    The last time My wife came to US on a valid H1B stamping (She has valid I-94 till next year)

    Please advise
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I really can't get into cases with unique facts and circumstances.

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