Spouse H4 Ead standalone RFE. Spouse out of country


Got Standalone h1b approval while abroad.
went for stamping with spouse, both h1b and H4 visa was approved
travelled on H1b alone

Few months later spouse joined and entered US on H4

Applied for H4 EAD,
attached all necessary documentation,
spouse h4 visa copy ,
spouse i94,
spouse passport us entry stamp,
spouse passport biographic pages ,
marriage certificate,
h1b holder i140 copy from previous employer,
h1b i797 approval notice from current employer,
h1b holder visa stamp, h1b holder i94,
h1b holder passport biographic pages,
i765 with c26 option and preference for recieving SSN,
2photos of spouse and chasier check for prescribes fees,
filed application few months back

Spouse travelled back to home country after a month because of personal emergency. Will return few months later.

Rfe received 4 days back and in rfe they are asking for

Proof of maintaining status for h4 visa
Proof of maintaining h1b visa

Both H4 and H1B holders are asked to provide the following

  1. A copy of your I-797, Notice of Approval, for your Form I-539
  2. A Copy of Form I-94
  3. The receipt number of your approved Form-I 539, if filed earlier; and/or
  4. A legible copy of personal data pages of passport; the visas on which you last entered the United States, and the latest US admission stamps in your passport.

and prove, prove maintenance of status for h4 and h1b.

Confused what was missing everything mentioned in required documentation was provided.

How to proceed with RFE ?

I always tell people that if you leave US after filing H4 EAD, USCIS might send an RFE to prove H4 status.

In your case, it has happened.

You cannot prove H4 status now as your wife has left US. She has to come back to US and get a new i94 and then submit the new i94 as proof of maintenance of H4.

Has USCIS asked for any specific time period for which you need to prove H4 status?

No they have not asked for any time period but in general they want details of proving maintenance of h4 status.

Well the only option we have is withdrawing petition. I saw sample withdrawal letter in this site. Would stating β€œ out of country and will not be back by stated rfe response date, hence cannot prove h4 status and wish to withdraw h4 ead petition β€œ sufficient reason ?

You have mentioned this in few places on this website, quoting this again here below … from USCIS website

1. Can I travel while my Form I-765 is pending?

You may travel if you are in valid H-4 status and meet all the admission requirements, including having a valid H-4 nonimmigrant visa. However, traveling outside of the United States could cause delays in your case. While you are outside of the United States, we may need additional information to make a decision on your Form I-765 or we may issue a Notice of Intent to Deny (NOID) with an opportunity to respond. If you do not respond on time to a Request for Evidence (RFE) or to the NOID, we may deny your case as abandoned. Additionally, travel outside of the United States may also cause possible delays if we need to reschedule your appointment at an Application Support Center.

Finally, please note that if you file Form I-765 concurrently with Form I-539 requesting a change to H-4 status from a different nonimmigrant classification, we will deny your Form I-539 as abandoned if you travel abroad while your Form I-539 is pending. In this case, we would also deny your Form I-765.

If you choose to depart from the United States before your pending change of status application is approved, we will deny your Form I-539 and Form I-765, even if you are re-admitted as an H-4 nonimmigrant. In such cases, after being admitted into the United States as an H-4 nonimmigrant, you will need to a file a new Form I-765.

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when they say the above, does it mean, h4 holder can provide all other evidence and substantiate reasons that being out of country and hence does not have valid i-94 ? does this help with approval ? or based on the fact that h4 holder has left the country hence cannot prove being in h4 status , be the cause for denial ?

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Hi @dusa4325

It depends on the USCIS case officer as to how he will interpret this situation.

My analysis is that if they have sent an RFE, then case officer is looking for current H4 i94.

In this case, you can either send the old i94 or send the withdrawal letter.

Your choice. You won’t get a refund in either case.

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Thanks Anil for all your inputs. greatly helps.
Is there any impact on future h1b or h4 extensions / visa stamping based on withdrawal or potential denial ? Any details would help.

As far as I know, there is no effect on future applications due to withdrawal.

Each action is recorded in USCIS records though and visa officer may look at past denial reasons. In your case, the denial would be simply due to the missing i94. I do not think it should affect any future applications.

Hi how did you handle the RFE?
My spouse is also planning to travel out of US while her EAD is pending.
Your experience will be helpful.