F1-OPT-EAD/I-485 Issue

N

nachiketha

Registered Users (C)
Sorry for opening a new thread on this as I did not find any relavent thread.

My wife has changed her status from H4 to F1 in last
year. She will be on F1-studies till July mid
of this year. Few weeks back she got her EAD for her
F1-OPT, which will start on Aug 15 of this year.

As I am going to file AOS(I-485) in july 1 st week for her and also an EAD, will
she able to work on her OPT-EAD till she gets her
I-485 EAD? Or She need to wait till she gets her
I-485 EAD to work?

As far as I know she need to wait till she gets her EAD of 485.
I sent a mail to lawyer and he mentioned she can work on OPT EAD till she gets her I-485 EAD. But stilll i have doubts and I dont want to do any thing wrong.

She is going to meet her international advisor on this sometime next week
, but he does not seem to be an expert in this area.

any ideas on this one?
 
Even if you file I-485, she will still be in F-1 status unless 1- she leaves the country for any reason, 2- the OPT period expires, 3- the green card gets approved.

As she will be in F-1 status, she is eligible to continue using the OPT EAD. The I-485 filing does not grant you a new status, so you continue with whatever status you are on until it expires, after which you continue to live in the US under "authorized stay" until the green card is approved or denied.

If she used the I-485-based EAD, she loses her F-1 status. But again, she can continue in F-1 status (and thus use her OPT EAD) while the I-485 is pending.
 
Well we havent applied for my wife's OPT yet (a situation slightly different from the one in original post from Nachiketha). My wife would complete her MS by Dec 07 and we'd like to file for her OPT (instead of using 485 EAD) then. If i understand your initial comment correctly, since she would still be in F1 status (assuming 485 is not approved by then), she should be eligible to file for OPT. Is that correct.

Not with the intention of questioning your understanding, however, this post mentions something different http://www.immigrationportal.com/showthread.php?t=115661&highlight=485+OPT

Thanks for all the responses.

A
 
I read the other post you referred to, and disagree with it. The person who wrote that claims that, as soon as you file I-485, you can no longer be in non-immigrant status. To the best of my knowledge, that is false. If you read LucyMO's post further down in that thread, (LucyMO is very knowledgeable), you can see that she clearly alludes to the possibility to hold F-1 status while adjusting to permanent residence.

1- What is true is that you can no longer be admitted to the US in non-immigrant status. If you apply for adjustment and then leave the country, you cannot return as F-1, J-1, or B-1/B-2. But if you remain in the country, you can continue to hold the status under which you were admitted until that status expires or until you become otherwise ineligible.

2- I will admit that I misunderstood your first post - I thought she already had her OPT EAD. If she has yet to apply for it, but has an adjustment application being processed, she theoretically should be able to obtain it as she is still in F-1 status. Practically, however, the fact that she has a pending I-485 may make the USCIS adjudicator jittery, perhaps.

3- Lastly, it is not necessarily the I-485 that shows proof if intent to immigrate. Rather, it is the I-140 immigrant petition that one usually files before (or concurrently with) the I-485.
 
jk0274,

Thanks for the prompt replies.

I'd rather like to believe you than to something that counters it, however being in this situation does make people a little paranoid about the rules and workarounds.

While were are still on this:

1. I understand that if for some reason my wife has to leave the country, she'd not be able to get back on F1. But since I am on an H-1B, she should be eligible for H4.

2. However, is it true that if she leaves the country, she'd forfeit her I-485 application since she on a non-immigrant intent visa (F1) status (F1 is not yet stamped, she has the I-797 notice of approval only). If she were on an H4, it wouldn't have been a problem, I suppose, but does her being on F1 bring this possibility into the equation?

3. Is that why AP is recommended?

Thanks,
A
 
ashirwadb,

Please remember that none of us on this forum are lawyers, so it is only prudent that you check and recheck all the information you get, even mine. However, I think you can find a lot of info about your specific case if you scan the web with google. So of course I won't take offense if you need to verify any of the information I give!!

As for your questions:
1- If your wife leaves the country while in F-1 status without an approved advanced parole document, she will abandon her I-485.

2- Your wife will also be very unlikely to be able to get a new F-1 visa stamp abroad, since she clearly indicated intent to immigrate by filing I-485. This is actually a question they ask on the consular visa application, and she can't lie about it, as that would be fraud and expose her to even greater trouble.

3- AP is not actually 'recommended' but 'required' by USCIS for adjustment applicants who wish to travel without abandoning their applications. An exception to this, as you know, is the H visa.

4- It is entirely possible for your wife to change her status to H-4, and I believe this is true even if you have already applied for I-485 since the H visa is a 'dual intent' visa. It is possible for your wife to obtain an H-4 visa abroad, even if she applied for I-485, for the same reason. The F, by contrast, is a strictly non-immigrant category. In either of these cases, and once the conversion to H-4 is approved, your wife would not need advanced parole but would not be able to work either.

5- Therefore, if your wife needs to both work and travel, her only option is to apply for I-485 with EAD and AP. She can continue to maintain her F-1 status as long as she does not use her C-9 category EAD (i.e. the AOS-based EAD) and can attempt to get a second OPT-based EAD (which I believe has a reasonable good chance of being approved). Or she can apply for I-485/EAD/AP, and as soon as it's time to start her OPT, start using her AOS-based EAD (and thereby lose her F-1 status, but it won't matter because now she can work and travel as a person whose AOS application is pending).

6- Not to make things more confusing, but even if your wife obtains H-4 status (here or after getting a visa stamp at a consulate and returning), she will lose it if she uses her AOS-based EAD. Again, she will still be legal and be able to work and travel, but will not have an underlying status other than that of being "legally present" in the US due to a pending AOS application.
 
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jk0274,

I appreciate all the diligence you have taken in understanding my situation and being patient enough to respond to my queries.

I guess the picture's somewhat getting clearer now.

1. I guess I should go for AP at the very least at this time.
2. Regarding EAD, since we'd really want to have OPT based EAD, I'd rather wait and apply for EAD later. I'd not want to apply for EAD now and then later apply for another (OPT EAD) without using the previous one (AOS EAD). USCIS could raise questions.
3. Going through your LUDs, it seems like you had a premium processing done for I-140. Does it help in moving things faster? I am thinking about it myself, but again, I have heard different opinions on it.

This week would indeed be spent googling a lot, but hopefully its all worth it.

Thanks,
A
 
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My I-140 hasn't been approved yet. I did concurrent filing. There is no premium processing for EB-2/NIW. The extra LUDs are because of an address changes. I think I will remove those, because it's not the first time I've confused people about them !!
 
F1-OPT-EAD (Pending) -- I485 Issue - Help ??

Hey Guys

I have a similar situation as your but little different. My Wifes OPT-EAD application is pending.

I am on H1B and my PD is Aug'03 (EB3) category and have my I140 approved.
My wife entered USA on H4 and converted to F1 (in Apr'07).
She has applied for PT-EAD about a 2 weeks back and her PT-EAD application is pending.

Now that all the dates are current, i am planning to apply for 485 in July and i am also planning to apply for 485-EAD and AP at the same time.

1) Can any of you please tell if i can add my wife on 485 application?
2) Can i also apply for 485-EAD and AP for my wife while her EAD (through masters program) application is still pending?
3) Is it allowed to apply for 485/EAD/AP for myself now and apply 485-EAD and AP for my wife after she gets her PT-EAD?

Please Help

Thanks
- H
 
thankyou very much for your lucid explanation.

jk0274 said:
Even if you file I-485, she will still be in F-1 status unless 1- she leaves the country for any reason, 2- the OPT period expires, 3- the green card gets approved.

As she will be in F-1 status, she is eligible to continue using the OPT EAD. The I-485 filing does not grant you a new status, so you continue with whatever status you are on until it expires, after which you continue to live in the US under "authorized stay" until the green card is approved or denied.

If she used the I-485-based EAD, she loses her F-1 status. But again, she can continue in F-1 status (and thus use her OPT EAD) while the I-485 is pending.
Click to expand...
 
As far as I know ..

answers below

Hey_GC said:
Hey Guys

I have a similar situation as your but little different. My Wifes OPT-EAD application is pending.

I am on H1B and my PD is Aug'03 (EB3) category and have my I140 approved.
My wife entered USA on H4 and converted to F1 (in Apr'07).
She has applied for PT-EAD about a 2 weeks back and her PT-EAD application is pending.

Now that all the dates are current, i am planning to apply for 485 in July and i am also planning to apply for 485-EAD and AP at the same time.

1) Can any of you please tell if i can add my wife on 485 application?

Yes you can.

2) Can i also apply for 485-EAD and AP for my wife while her EAD (through masters program) application is still pending?

Yes you can

3) Is it allowed to apply for 485/EAD/AP for myself now and apply 485-EAD and AP for my wife after she gets her PT-EAD?

Yes you can . But for that the dates needs to be current at that time when you want to apply for ur wife I-485/EAD/AP

Please Help

Thanks
- H
Click to expand...
 
Nachiketa and all,

Since I am in the same situation, I have questions regarding what to enter for a couple od questions on I485 and I-131 for spouse:

I-485:
1. Part I: My wife doesnt have a Social security # yet. Should i enter "None" where it asks for one.

2. Part I: What to enter for "Expires On" for the Current USCIS status. Should it be "Duration of Status"? Same for G-325A.

I-131:
3. Part 3 of I-131 (AP form): For "Date of intended departure", I guess any date 5-6 mo in future should be okay. is that right?

4. Part 7 of I-131 (AP form): Any template for "How you qualify for advanced Parole and what Circumstances warrant issuance of AP"

5. What documents to provide for question in 4 above?


Any pointers to questions above would be helpful.

Thanks,
A
 
Hello everyone, I was reading through your posts and have a few questions.. I'm on a H1-B and my wife is on F1. Is it ok to file I-485 for both me and my wife at this time. She will be graduating in Dec-07, so by that time i'm hoping I would get the EAD and AP. If I don't get those, will my wife have to apply for OPT to potentially start working. Also can she travel in F1 when her I-485 is filed but her EAD and AP are not available yet. THanks to all the members who can help out a novice in this regard
 
same situation! This is what i have gathered...

southasiandude said:
Hello everyone, I was reading through your posts and have a few questions.. I'm on a H1-B and my wife is on F1. Is it ok to file I-485 for both me and my wife at this time.
----------- Yes

She will be graduating in Dec-07, so by that time i'm hoping I would get the EAD and AP. If I don't get those, will my wife have to apply for OPT to potentially start working.
----------- To work she's need either of the two EADs if AOS is still pending. So the answer is yes. What i am not sure of is if you get your AOS EAD (and dont use it), can you still apply for OPT?

Also can she travel in F1 when her I-485 is filed but her EAD and AP are not available yet.
----------- If she travels while on F1 status without AP, she'd lose her F1 status (but can always come back on H4 after getting it stamped from a consulate) but more critically she'd also be abandoning her I-485 application. So, do not travel until AP is approved and you have the papers in hand.

THanks to all the members who can help out a novice in this regard
Click to expand...

Others,
It would be great if someone can reply to my queries.

A
 
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Found something that relates to our cases... though to me this does not make sense. Just by applying for AOS, one shouldn't lose current status, irrespective of current status.

Comments welcome
A

http://www.murthy.com/chatlogs/ch051407_P.html


Chat User : My husband is on H1B and is about to file for his I-485.
I am currently on an F-1 visa. Do I have to convert to H-4 to file for I-485
with my husband, or can I file while being on F-1? Please advise.

Attorney Murthy : A person can file the I-485 while still in F-1 status, but unlike the H1B/H-4 or L-1/L-2 which are dual intent, the F-1 is a pure nonimmigrant status. This means that, upon the I-485 filing, one is no longer considered to be in F-1 status, but converts to an adjustment applicant, eligible for the EAD and AP, etc.
 
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Hello,
I am in the same situation and we don't want her to lose F1 status while EAD/AP is still pending.. Please let me know if you find anything else on this..

Thank you.
 
I have been getting new information on this by every passing day which is making it tough to zero in on a decision.

Anyhow, as of today, this is what i am thinking: Not to file for EAD with I-485 since my wife is still going to school. Subsequently, 3 months before she graduates, based upon the then avialable information, we'd either file OPT EAD or AOS EAD. I know i'd have to fork out $340 instead of $180 today (due to fee hike) but i guess that's the price I am willing to pay.

Reason: I havent found any conclusive information on if its possible to file AOS EAD now (and not use it) and OPT EAD when my wife is about to graduate. I fear that if AOS EAD is approved now, USCIS might not approve OPT EAD (conflict of intent) later. I am hoping that we'd be able to file for her OPT since no where in I-765 does USCIS ask for if AOS is pending. So I wish to file only one EAD, whichever it is. Ofcourse, this is based on the assumption that AOS would not be approved before we intend on filing for EAD.

This is my present stand while very well is liable to change by the time sun reaches the western horizon by the day end.

Let me know if you find something on this.

A
 
Having said what i said in my previous post above, this is what I found on this issue:

http://www.hooyou.com/f-1/140filing.htm

Now, the possibility to be able to file for OPT post I-485 filing becomes all the more gray. Based on the above link, its not the USCIS but school authorities that may bar one from doing so.

Any thoughts/comments welcome.

A
 
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Hi,
thanks for the link.. That was useful..
With regards to your case, i am wondering why do you want to get EAD based on OPT?

Rather will be better to file for EAD (based on AOS) with 485 and get it in 34 months. Then your wife can work on that EAD and you dont really need OPT-EAD...

It seems like, when you go to apply for OPT-EAD after having filed 485.. it may not be allowed etc.. so rather than wait for that, why not just file EAD- aos and get your work permit.. you shouldn't need OPT then?
 
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