Immigration Issues/I-148 and F1 Visa

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Question
Thanks for your volunteer work. Countless others including yours truly appreciate it very much.    

I am on my 6th year H1B which will expire on July 17, 2008.

My company applied for I-140 with an approved Labor Cert last year on Oct 23, 2007. No response yet from USCIS.  

Applying under EB2 and it is current for my country.  

My wife had a COS from H4 to F1 for fall of 2008. Her F1 starts on July 26, 2008 up to duration of status (approx 2 years).     
My questions are:   

1) if around end of June, if I have not heard back from USCIS regarding my I-140, can I go for being an F2 (dependent of F1) ? The reason being I may be offered a job outside the US.    

If I choose to go for F2, would I still be able to apply for I-485 once my I-140 gets approved ?   

If so, can I apply for the I-485 say 2 or 3 years after ?    

2) If on the other hand, my I-140 gets approved --- and I chose to go for I-485 but do not include her on that application---what are the consequences ?   Can she apply for the COS once say after my I-485 is approved, anyway, she is included on the I-140 application.  

I am doing this just in case, my I-485 is denied -- at least, we have a fall back to stay on the US and that is with her F1 visa and my eventual conversion to F2 if ever my I485 gets denied.

Please advice.  Thanking you in advance for your time.    

Sincerely,   

Esmond

Answer
Hi Esmond,

Your change of status to F-2 will probably be denied since an immigrant petition has been filed for you (and thus you have an intention to immigrate to the U.S.) Therefore, if you are in the U.S., continue to extend H-1B status as required (H visa status allows for intention to immigrate to the U.S.) If you are not in the U.S., you are not required to maintain any nonimmigrant status in the U.S. Therefore, you can travel abroad, but to enter the U.S. you would need an appropriate visa to enter the U.S. (such as visitor visa, which will probably not be granted to you since you have an intention to immigrate to the U.S.). Therefore, I recommend maintaining H-1B status if you will be in the U.S.

If you are not in the U.S., you cannot file adjustment of status. However, you can still file for consular processing of an immigrant visa ("green card") at a U.S. Consulate abroad in lieu of adjustment of status when your priority date is current, and your I-140 has been approved.

I recommend that your wife file I-485 when your priority date is current (she can file at the same time as you or later, but not before you). If you are not in the U.S., you can apply for consular processing and your wife can still file for adjustment of status in the U.S. It appears that your wife's F-1 application has been approved already, which is good since it would not have been approved if her F-1 application was filed after her I-485 filing.

Regards,
Ajay K. Arora, Esq.
www.h1b1.com

Immigration Issues

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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