status of AOS pending secondary applicant

[nobody10]

Hi, does any know for sure what the exact status is for an AOS pending secondary applicant, and what they are eligible to do? By an AOS pending secondary applicant, I am referring to the spouse of a primary applicant, both of whom have filed their I-485. Does the secondary applicant need to be working (on H1) or be in school (on F1)? Or vice versa, if (s)he was working or was in school, can (s)he quit since (s)he is already in the "AOS pending" status? Any feedback is appreciated. Thanks.

 

[civ2ru]

The way I understand it, even the secondary applicant is in "AOS adjustee" status while I-485 is pending - after all, if the application gets approved, you all will be receiving your Green Cards! However, quitting the non-immigrant status is usually not advised, in case something should go wrong with you I-485.

 

[tedun]

The way I understand it, even the secondary applicant is in "AOS adjustee" status while I-485 is pending - after all, if the application gets approved, you all will be receiving your Green Cards! However, quitting the non-immigrant status is usually not advised, in case something should go wrong with you I-485.

One can not have a non immigrant and an immigrant (AOS) status at the same time. The moment you file for AOS you loose your non immigrant status.
You can, if you wish, maintain your H1B, because it contains immigrant intent

 

[civ2ru]

I'm sorry that I didn't specify the dual intent distinction.

Only if the secondary applicant is in a dual intent status, such as H-1, O-1, P-1 or L-1 (which is still non-immigrant status technically, even H-1 is a "non-immigrant worker" - just look at your last I-129 approval!) , they are usually advised to keep maintaining it while AOS. Otherwise, "AOS pending" becomes their status - which is also legal.

 

[nobody10]

Thanks tedun and civ2ru for your replies. I am currently in H-1B status while my wife had entered the country on F-1. So from what you two are saying, my conclusion is that we are both in the "AOS pending" status since we have both filed our I-485, but only I have the option of maintaining my H-1B since its dual-intent. As for my wife, she can only be in "AOS pending" status which I believe allows her to: 1) continue to be in school, or 2) quit school and work with an EAD card, or 3) quit school and do nothing. Options #2 and #3 are particularly important for me to confirm since thats exactly my wife is contemplating of doing! Any comments on these?

I am also hoping she will have no problem getting her AOS approved. If it does get rejected for any reason, she will be in the US without any status and will have to leave the country. Do you know of any other options in this scenarios? Do appeals work? Or can you switch to a legal status within a fixed timeframe?

 

[civ2ru]

While your I-485 is pending, your wife can either work (with EAD), or not work (so, the answers to #2 and #3 are positive). As far as being without a status should I-485 get denied - you hit the nail on the head there - unless she can acquire status that allows dual intent, before filing for AOS, she really won't have a status to fall back on in case of I-485 denial. However, her route is still a perfectly legal (if you have a strong case and everything goes smoothly, she'll get her GC in the end), it's just a little riskier.

In regards to her other options - see if you can get professional advice on that. To be on a safe side, since we are not attorneys. Good luck!