AOS EAD to H1 COS

[gcpursuit]

Hello Everyone,

I am looking for answers to a complicated question. Back in 2008, my wife started working using her EAD received during july 2007. My I-140 NIW petition was pending at that time and it was eventually denied in 2009. Her employer applied for a new H1 in April 2009 and she got the H1 with i-94 starting from October 1 2009 ( she had a valid H4 i-94 till sep 30 2009 ). We have done amendment/extension without any issues in 2011. We travelled to India in Dec 2012 and she got H1b visa stamping and entered using that. She also applied for extension last year and got it approved last year.

I have been reading that AOS to H1 cannot be done within US and one must get visa stamped to do that. Then how did USCIS approve my wife's case with i-94? Should we be concerned about this when we file for AOS? If there will be any issues, would the last entry of Dec 2012 protect us?

Gurus - please add your thoughts.

[nbk1976]

Please clarify:
What is your wife's current status? Is it H1?

What is your current status?

Do you or does your wife plan to file for I-485 (AOS)?

[gcpursuit]

Please clarify:
What is your wife's current status? Is it H1?

What is your current status?

Do you or does your wife plan to file for I-485 (AOS)?

Yes. We are both on H1. She will be moving to H4 in November as her 6 year term is ending.

We do plan to file for I-485 if my date gets current this year ( PD : June 29, 2009 ).

[nbk1976]

I see no issues. You are both in status. Your travel happened when you still had valid visas.

When you file for I-485 (AOS) this year and I-765/I-130 (EAD/AP), using the EAD, she will have FULL freedom to work for ANY employer and ANY kind of job.

AOS can definitely be done within the US. In fact, you cannot apply for AOS outside the country.

Good luck!

[gcpursuit]

I see no issues. You are both in status. Your travel happened when you still had valid visas.

When you file for I-485 (AOS) this year and I-765/I-130 (EAD/AP), using the EAD, she will have FULL freedom to work for ANY employer and ANY kind of job.

AOS can definitely be done within the US. In fact, you cannot apply for AOS outside the country.

Good luck!

Thank you for the reply. I specifically want to know if the cos from EAD to h1 without stamping would cause issues.

I checked with my attorney and he said it won't be a problem. Hoping for the best.

[nbk1976]

As your attorney said, there are no issues here.

Visa stamping is needed only for travel back from home country (if the visa is expired).

Since you have remained in the US after your return from India, your expired visa stamp on the passport has nothing to do with your status. In fact your H1 extension was granted by USCIS--which gives you the legal status to stay and work in the US for your employer.

You can apply for AOS without any worries.