H4 to H1 stamping while husband on EAD(AoS)

[Niksammy]

Hi Gurus,

My wife would be traveling to India next week for her H1 B (CAP Exempt) stamping. She is a doctor doing her second year residency in Internal Medicine from a New York City hospital( part of NYC Municipal Hospital System). She changed her status from H4 to H1 in July 2011.

I am currently working on EAD (with pending i-485) in NYC. Since we were not married in July 2007 when My I-485 was filed, I have not been able to add her to my application as dates have not been current.

Do you think that she will have any problems because I have a pending i485?

Also, while going through her I-129, we found out that one of the questions has been answered incorrectly.
Her hospital has 2300 employees and it is a NON-H1B dependent employer. These facts have been clearly stated in her I-129.

But in 'H1B Data Collection and Filling Fee Exemption Supplement', her immigration lawyers answered the question 'Does petitioner employ 50 or more individuals in US.' as 'No' and left the next question, 'If yes, are more than 50% of those employees in H1B or L non immigrant status?' unanswered. Do you think that this typo error on I-129 supplement can result in issues during H1B stamping?

Any inputs regarding above 2 queries will be highly appreciated.

[qesehmk]

Nik,
Welcome to forum. To answer your questions to best of my ability.
1. H1 is dual intent. So any possible link to future ability to get GC is perfectly fine. So I don't think she should have any problems because of her future ability to be a dependent on your GC application.
2. Regarding the wrong info on H1 - I think that indeed is a significant lapse and may create future problems. Also there is a chance (very small though) that the visa office might actually ask how many employees in US and if you give different answer then you are not going to get any benefit of doubt. So you can take a chance and I think more than likely she will get her H1 stamped. If I were you - I would go for stamping and if the question is asked then tell the truth and also tell that it is an honest mistake.

p.s. - Why do you need to stamp at all? She can change status right here. Doesn't need to go anywhere.

Hi Gurus,

My wife would be traveling to India next week for her H1 B (CAP Exempt) stamping. She is a doctor doing her second year residency in Internal Medicine from a New York City hospital( part of NYC Municipal Hospital System). She changed her status from H4 to H1 in July 2011.

I am currently working on EAD (with pending i-485) in NYC. Since we were not married in July 2007 when My I-485 was filed, I have not been able to add her to my application as dates have not been current.

Do you think that she will have any problems because I have a pending i485?

Also, while going through her I-129, we found out that one of the questions has been answered incorrectly.
Her hospital has 2300 employees and it is a NON-H1B dependent employer. These facts have been clearly stated in her I-129.

But in 'H1B Data Collection and Filling Fee Exemption Supplement', her immigration lawyers answered the question 'Does petitioner employ 50 or more individuals in US.' as 'No' and left the next question, 'If yes, are more than 50% of those employees in H1B or L non immigrant status?' unanswered. Do you think that this typo error on I-129 supplement can result in issues during H1B stamping?

Any inputs regarding above 2 queries will be highly appreciated.

[Niksammy]

Nik,
Welcome to forum. To answer your questions to best of my ability.
1. H1 is dual intent. So any possible link to future ability to get GC is perfectly fine. So I don't think she should have any problems because of her future ability to be a dependent on your GC application.
2. Regarding the wrong info on H1 - I think that indeed is a significant lapse and may create future problems. Also there is a chance (very small though) that the visa office might actually ask how many employees in US and if you give different answer then you are not going to get any benefit of doubt. So you can take a chance and I think more than likely she will get her H1 stamped. If I were you - I would go for stamping and if the question is asked then tell the truth and also tell that it is an honest mistake.

p.s. - Why do you need to stamp at all? She can change status right here. Doesn't need to go anywhere.

Q,

Thank you very much the quick response. I have been a silent spectator of this site for quite some time following EB2 prediction thread on a regular basis. You, Spec and all the gurus are doing a great job.

I know that she does not need to leave US or go for stamping in India. Since we have not gone back to India in last 30 months, we decided to go to India and she will need to US Embassy for stamping before re-entering US. I was hoping that I will get my GC by now(EB2 Dec 2006 porting case waiting to interfile as soon as dates become current) or atleast be able to add my wife to my i-485 and get her EAD , but dates have not moved at all since June 2012.

Could you please elaborate on 'I think that indeed is a significant lapse and may create future problems'? On her i-129 petition, it is clearly mentioned that Hospital has 2300 employees and it is a 'Non H1 B Dependent' employer since only 52 employees are on H1 B(which is less than 15% for employer with > 50 employees). Do you think that a honest typo error on 1-129 supplement could cause her H1B to be rejected. Is it worth taking the risk (lawyer says not a big issue since he made the mistake)? If yes, would a certified statement from her hospital HR be helpful in this regard?

[qesehmk]

Nik

You are welcome.

First I agree with the lawyer that it may not be a big deal at all. What I was referring to - is the small chance when things could go wrong. But even if so - she can always come back on H4 and then revert to H1 status.

As per future problems - I think an error is an error and the lawyer should communicate with USCIS about it. All of us understand it is an honest mistake and not fraud - but just the act of explaining it to USCIS down the line; just in case THEY find it out, will be excruciatingly painful.

But as per India trip - may be just make the trip - take chance and then fix it. If the lawyer is not worried then I really wouldn't worry either. Generally lawyers are very very conservative and he would've cautioned against the trip.

Q,

Thank you very much the quick response. I have been a silent spectator of this site for quite some time following EB2 prediction thread on a regular basis. You, Spec and all the gurus are doing a great job.

I know that she does not need to leave US or go for stamping in India. Since we have not gone back to India in last 30 months, we decided to go to India and she will need to US Embassy for stamping before re-entering US. I was hoping that I will get my GC by now(EB2 Dec 2006 porting case waiting to interfile as soon as dates become current) or atleast be able to add my wife to my i-485 and get her EAD , but dates have not moved at all since June 2012.

Could you please elaborate on 'I think that indeed is a significant lapse and may create future problems'? On her i-129 petition, it is clearly mentioned that Hospital has 2300 employees and it is a 'Non H1 B Dependent' employer since only 52 employees are on H1 B(which is less than 15% for employer with > 50 employees). Do you think that a honest typo error on 1-129 supplement could cause her H1B to be rejected. Is it worth taking the risk (lawyer says not a big issue since he made the mistake)? If yes, would a certified statement from her hospital HR be helpful in this regard?

[Niksammy]

The problem is that I am not working a H1B(but EAD), so she can no longer come back on H4. Her H4 stamping expired way back in Sept 2011. That is the reason I asked 'Is it worth taking a risk?' especially since my dates should (hopefully - keeping my fingers crossed) become current in next 3 months.

[qesehmk]

Sorry I certainly missed that out. I do think then she will be in quite a pickle if her H1 stamping runs into a problem. So yes it is a risk - a small one though. I think Nik - unless there is some emergency - I would make plans after GC which for your should definitely arrive by Jul. In fact I am surprised - why you didn't call USCIS when your date was current for so long? So whenever teh date becomes current - call USCIS and ask for a status. Second - ask your senator to look into it as soon as your date becomes current.

The problem is that I am not working a H1B(but EAD), so she can no longer come back on H4. Her H4 stamping expired way back in Sept 2011. That is the reason I asked 'Is it worth taking a risk?' especially since my dates should (hopefully - keeping my fingers crossed) become current in next 3 months.

[Niksammy]

Sorry for not providing all this information earlier.

My Eb2 labor got approved (through a new employer) in July 2012, applied for Eb2 i-140 in Aug 2012 (PP) which got approved within 10 days with old priority date of Dec 2006 captured successfully. Unfortunately, the dates never moved beyond 1 Sept 2004 since then

[qesehmk]

Got it. So its porting case. All the best. You should be fine when the date becomes current - latest by Jun 2013 IMHO.

Sorry for not providing all this information earlier.

My Eb2 labor got approved (through a new employer) in July 2012, applied for Eb2 i-140 in Aug 2012 (PP) which got approved within 10 days with old priority date of Dec 2006 captured successfully. Unfortunately, the dates never moved beyond 1 Sept 2004 since then

[gsubosw]

I am on H1B, my I-140 is approved in EB2. My wife was on F1 and she moved to H1B. We want to get her visa stamped in Canada. My question is - would his be an issue during her H1B stamping as she would surely be asked whether she wants to immigrate to USA. If she says Yes -- it would lead to rejection due to the fact that H1B is a non imm Visa and if she says No and then they ask about my status she has to disclose my I-140 approval.
Please suggest what she should respond if this situation comes. Is my I-140 approval is negative for her H1B stamping