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Immigration Issues/Can wife file I-485/AOS while on F1?


 I'm on H1-B & my wife is on F1 - graduating in May '12. Her OPT appln is currently under process. My PD is current & I might be filing my I-140 & I-485 next month. I have the following questions:

1. Can my wife apply along with my I-485 appln?

2. If yes, what's her legal status once the I-485 appln is filed?

3. If she gets her OPT while the I-485 is under process, can she 'opt' to work with her OPT EAD?

4. If for some reason the AOS appln gets denied, what's her legal status?

5. We initially came on L visa & I then converted to H & my wife to F1 visa. Can INS deny her AOS appln on the basis of 'Nonimmigrant Intent' clause? Can this clause even be applicable to her considering she entered US on a dual-intent visa.

6. My wife should be in H1 status in Oct '12. So, given this information, what's the least risky option for us to do our AOS, ie.,
a. Should my wife wait to get her H1 & if my PD is current in oct '12, then file for her AOS as a 'derivative'.
b. Is it 'too' risky a proposition to file her AOS while she's in F1/F1-OPT status?

Thank you for giving us your valuable time.

ANSWER: Let me answer in seriatim:
1) Yes she can and that is also advisable.
2) Adjustment/GC pending.
3) Once I-485 is filed - she may continue to renew her F1 status but will receive only one EAD)  (either through F1/opt  or I-485).
4) She can opt for F1  or H4 (if you continue your H1) or any other non-immigrant visa she would be eligible. Also, please note that in case of a denial you could file an appeal and/or a motion and she could continue renewing her EAD during pend-ency thereof.
5) You are right, the question of intent may not arise in this case; even if it does, she is eligible as a derivative beneficiary.
6) a. You mentioned that your PD is current and you might be filing AOS next month [if so - go ahead and file I-485 for her too]- so which PD are you talking about to be current in Oct'12?
  b.  Not at all.

Best wishes,

---------- FOLLOW-UP ----------

QUESTION: My PD is beyond Aug 2007 (may 1, 2012 PD as per USCIS) from an earlier employer. My perm is under process with new employer but I expect it go get approved any moment. The reason I asked about filing her AOS in Oct '12 or beyond would 've been applicable if its too risky for her to file in her F1 status with me.

Btw, she should be going from F1-OPT to H-1 in Oct '12. So, if she starts working on F1-OPT & before she moves to H1-b (from Oct 1, 2012) gets her ESD can she still opt to work in H1-B status even if she has an AOS EAD @ that point or does the AOS EAD over-ride all her visa status's.

If her 485 was to get denied & she's has an approved H1-B @ the time of denial, will she automatically drop to H1-B visa status or will she be out of any visa status.

ANSWER: One may continue being on H status while and as long as I-485 is pending. Having an approved H1B does not itself confer status - one must be working with the petitioner and getting paid accordingly.  If your wife is working on H status at the time of denial of AOS, she should be fine.

Best wishes,  

---------- FOLLOW-UP ----------

The intent of my question is to understand if its legally possible for my wife to have her own status even when our 485 is under process so that in case of denial/rfe she can continue to remain in legal status. I had the following question in my original post.

3. If she gets her OPT while the I-485 is under process, can she 'opt' to work with her OPT EAD?
for which you had replied with

3) Once I-485 is filed - she may continue to renew her F1 status but will receive only one EAD)  (either through F1/opt  or I-485).

 So, if I understand your answer correctly she would be in 485-pending status & not in F1-OPT status anymore. With the background information that my wife's F1 OPT application is under process, my question below is to understand my options to limit risk to my wife's status. Can she file just 485 & AP applications without asking for EAD. If this is possible, then would the above keep her in F1-OPT status or the mere filing of 485 automatically invalidated her F1-OPT status.

  In Oct '12, when she starts in H1-B can she then apply for her AOS EAD separately.

  If we file my wife's AOS all together (485 + AP + EAD) & if her AOS gets denied while she's still in F1-OPT status (pre-Oct '12), is there a legally defined grace period for her to leave the country. If there's one given by law & she applies to COS to H4 in that time period, will she be in legal status while her AOS MTR & COS to H4 is under process?

You seem to be a little confused about being in status and filing respective applications. My advise would be to consult an attorney with all the details; the forum may not be appropriate to discuss all these in detail.  

However, in short - one may continue to renew the non-immigrant visa (F1/H1, etc.) while also applying for I-485 so that if I-485 is denied one may continue the non-immigrant status and be not out of status.  

As for switching to F1-Opt after denial of I-485 - well yes, she may do so.  

Best wishes,  

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