H4 EAD RFE with valid H1B?

USA H1B Visa
1

Hi ,

My wife did H4 stamping in India and after sometime she also got H1B stamping done. So she entered US on H1B visa in 2015.

She worked for 6 months and due to her health issues, since she was unable to work we decided to do a reentry on H4 to change the status to H4. We re-entered from Mexico and changed the status to H4 to get a new i-94 status.

As my i140 got approved, we decided to file H4 EAD. Now we have got an RFE for the H4 EAD.

Note : Her employer has not revoked her H1B and she is currently not working for them.

############################# RFE is as below.: ###########################################

AN EAD category C26 is established for the H-4 dependent spouse of an H1b nonimmigrant , you may not eligible for C26 EAD if you are already in valid H1b status.

Please submit evidence of your current H1b status, including but not limited to.

  1. A statement on your current H1B status, if you ever worked for the H1b employer, if you still work as an H1B , the date you stopped working for the H1B employer if applicable. Please be advised that you statement of non-working may be grounds for withdrawal of H1b.

  2. copy of revocation notice of form I-129H1B if applicable.

  3. the receipt number of your approved form I-539 if filed earlier ; and /or

  4. A copy of your latest Form I-94 , Arrival -Departure record, or latest US admission stamps in your passport.

##############################End of RFE #################################################

Points 2 and 3 are not applicable since her employer has not filed for revocation of H1b and neither we applied for COS to H4.

We can provide 1 and 4.

My question is how should we go about this for non-withdrawal of H1B and also get H4 EAD.

2

  1. Did she get paid regularly when on H-1? Does she has payslips to prove so?

  2. When she looks-up her I-94 and travel history online on CBP site, does it show I-94 number issued when returning from MX?

3
  1. yes we were paid regularly. We have pay stubs to support that.
  2. Yes I-94 is updated with the re-entry from Mexico and her current status showing as H4.
4

In that case go ahead and submit the appropriate response. Maybe include a chronological step of events and refer each step to documentary evidence.

Most likely USCIS officer missed the H-4 entry from MX when looking at the case history.

5

Do we need to submit pay stubs to them along with I-94
. Will her H1B be revoked?

6

@Saurabh can we just submit the I-94 document or do we need to submit paystubs also?

7

I would say submit payslips also to show that you were getting regularly paid and maintaining status.