正文
Back in 1999, then INS published a memo on the duel intent rule for H/L status. In the commetary part of this memo, with no more than 20 English words, USCIS said that the H-4 dependent cannot maintain his/her H-4 status after using I-485 derived EAD. But since then, the INS/USCIS practice in adjudicating H4 cases (change of status, extension of H4 status) is very contrary to this position. For examples:
1) Change of status: an H-4 dependent used EAD to work for an employer for some time, later the same employer filed H-1 petition for the dependent. The dependent got full approval of the H-1 petition and did not go outside to get H-1 visa to re-enter US. Her status changed from H-4 to H-1.
2) Extension of H-4 status: an H-4 dependent used EAD for an employer, when her H-4 status was to expire, she filed H-4 extension (I-539, and honestly told USCIS that she used EAD). The extension was approved.
The general rule of change of nonimmigrant status and nonimmigrant status extension is: the alien must be in the valid nonimmigrant status before he/she files COS or extension. Above two examples show that USCIS still treats the applicants as H-4 dependents even the dependents used EAD.To this extent (at least in the above two real cases; and I believe there are more similar cases), the H-4 dependents still maintained their H-4 status after using EAD.
I had a big fighting with someone on this issue several months ago. At that time, I was not able to read the 1999 memo. But from the practice of USCIS, I insist that using EAD does not cause the H-4 satus because H-4 status is dependent on the principle H-1 status.
I am still sticking to my position, especially in light of the USCIS practice. USCIS promised to generate a formal rule since May 16 2000 memo but the formal rule has never come down. Does the USCIS practice signals that it has silently taken back the 1999 position on H-4 status and is now in line with my position? I hope so.
This is to say that the dependent may maintain his/her H4 status within the United States. If the dependent has used EAD and wants to travel abroad, he/she should obtain an AP before leaving this country. Mr. Stanley Mailman also feels that it is safer to use AP in that scenario.
1) Change of status: an H-4 dependent used EAD to work for an employer for some time, later the same employer filed H-1 petition for the dependent. The dependent got full approval of the H-1 petition and did not go outside to get H-1 visa to re-enter US. Her status changed from H-4 to H-1.
2) Extension of H-4 status: an H-4 dependent used EAD for an employer, when her H-4 status was to expire, she filed H-4 extension (I-539, and honestly told USCIS that she used EAD). The extension was approved.
The general rule of change of nonimmigrant status and nonimmigrant status extension is: the alien must be in the valid nonimmigrant status before he/she files COS or extension. Above two examples show that USCIS still treats the applicants as H-4 dependents even the dependents used EAD.To this extent (at least in the above two real cases; and I believe there are more similar cases), the H-4 dependents still maintained their H-4 status after using EAD.
I had a big fighting with someone on this issue several months ago. At that time, I was not able to read the 1999 memo. But from the practice of USCIS, I insist that using EAD does not cause the H-4 satus because H-4 status is dependent on the principle H-1 status.
I am still sticking to my position, especially in light of the USCIS practice. USCIS promised to generate a formal rule since May 16 2000 memo but the formal rule has never come down. Does the USCIS practice signals that it has silently taken back the 1999 position on H-4 status and is now in line with my position? I hope so.
This is to say that the dependent may maintain his/her H4 status within the United States. If the dependent has used EAD and wants to travel abroad, he/she should obtain an AP before leaving this country. Mr. Stanley Mailman also feels that it is safer to use AP in that scenario.
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