AOS for spouse ! Please help !!

[ethereal]

Folks,

I am enumerating the questions so that you folks can help me understand each element of the situation at hand:

Background: I am on H1-B, have applied for I-140(NIW, no LC)/I-485 at VSC in Sept'03. Currently the processing date is March'03; so there are a few months to go
I got married in April'04. My wife is on an F-1 (expiring this December'04). She has not yet applied for an F-1 based OPT

1. If my I-140(NIW, no LC)/I-485 get approved, and I have not applied for spousal AOS based on my application, am I forever doomed ? Can I not apply for her AOS based on my "approved" I-485 ? I am asking this question because I know that I could do it now (when my I-140/I-485 is still pending), why can't I do it when it is approved ? She is in the US currently. Please cite specific rules/forms

2. If I do apply for her, is it imperative that she get onto an H-4 before I apply for her spousal AOS ? Can I do the AOS and H-4 application simultaneously ?

3. Are there huge problems going from H-4 to H1-B for her (if she wanted to or had an opportunity to do so)? Is this something that is ill-advised ?

4. While she is on F-1 (or on the subsequent F-1 based OPT), and then I apply for her AOS, her OPT status ends. What does she do if she is working as a full-time employee (or an intern) at that time ? Does the OPT end the instant the application is received at VSC, or when the case is adjucated (approval or rejection). If it is rejected, does the original F-1 based OPT become "active" again ? Or is it gone forever ?

5. If she gets onto an H-4 and spousal AOS/AP/EAD, and then becomes an intern or full time employee, can she then apply for her own individual H-1B through her company ? Will she have to wait to check on how the AOS case was adjucated ? Or can she go right ahead ?

6. Based on your knowledge, do you suppose going from her current status to AOS/AP/EAD via an H-4 is the best possible route ? Or should she try to get onto her own H-1B and then I could apply for her spousal AOS ? That seems a bigger problem because the quota for H-1B will be reached quickly and my application might get processed before that.

Any advice will be welcome. I understand there might be others like me who are struggling with these questions. Please help

Thanks in advance

 

[TheRealCanadian]

If my I-140(NIW, no LC)/I-485 get approved, and I have not applied for spousal AOS based on my application, am I forever doomed ?

No, unless you have an unhappy marriage and do not believe in divorce. The operative date is the date of the marriage; so long as it took place before your I-485 was approved you are fine.

2. If I do apply for her, is it imperative that she get onto an H-4 before I apply for her spousal AOS ?

No. My wife filed her I-485 in B-2 status.

3. Are there huge problems going from H-4 to H1-B for her (if she wanted to or had an opportunity to do so)? Is this something that is ill-advised ?

No, but why complicate things? File her I-485 and get her an EAD.

4. While she is on F-1 (or on the subsequent F-1 based OPT), and then I apply for her AOS, her OPT status ends. What does she do if she is working as a full-time employee (or an intern) at that time ?

If she has a valid EAD she is fine, so long as it does not expire before the new EAD arrives. I see no advantages to her having a restricted EAD via OPT when she can get the readl deal via AOS.

If she gets onto an H-4 and spousal AOS/AP/EAD, and then becomes an intern or full time employee, can she then apply for her own individual H-1B through her company ? Will she have to wait to check on how the AOS case was adjucated ? Or can she go right ahead ?

Why does she want to waste her employer's time and money getting an H-1B, and harming her own job search that way?

Just file the adjustment and be done with it. How concerned are you about your own NIW petition?

 

[redneck]

1. If my I-140(NIW, no LC)/I-485 get approved, and I have not applied for spousal AOS based on my application, am I forever doomed ?

This is not exactly correct. But if your I485 is approved and you have not applied for spousal AOS then you will probably have to go through follow to join process (I824). Guys correct me if I'm wrong.

Can I not apply for her AOS based on my "approved" I-485 ? I am asking this question because I know that I could do it now (when my I-140/I-485 is still pending), why can't I do it when it is approved ? She is in the US currently. Please cite specific rules/forms

You could but I believe the process is a little bit more complicated.

2. If I do apply for her, is it imperative that she get onto an H-4 before I apply for her spousal AOS ? Can I do the AOS and H-4 application simultaneously ?

There is no reason to apply for her H-4. As soon as you started her AOS - she is Ok even if her F-1 Expires.

3. Are there huge problems going from H-4 to H1-B for her (if she wanted to or had an opportunity to do so)? Is this something that is ill-advised ?

There is no reason for her to get H1B since after starting AOS she can get an Employment authorization.

5. If she gets onto an H-4 and spousal AOS/AP/EAD, and then becomes an intern or full time employee, can she then apply for her own individual H-1B through her company ? Will she have to wait to check on how the AOS case was adjucated ? Or can she go right ahead ?

I belive that she can. H1B and AOS don't contradict each other.

6. Based on your knowledge, do you suppose going from her current status to AOS/AP/EAD via an H-4 is the best possible route ? Or should she try to get onto her own H-1B and then I could apply for her spousal AOS ? That seems a bigger problem because the quota for H-1B will be reached quickly and my application might get processed before that.

Just go ahead and start AOS without H4 or H1B

 

[TheRealCanadian]

This is not exactly correct. But if your I485 is approved and you have not applied for spousal AOS then you will probably have to go through follow to join process (I824). Guys correct me if I'm wrong.

You're wrong. If the spouse is already in the US the she can file the I-485 at any time. FTJ is used for spouses outside the US who have no means of getting here via a non-immigrant visa.

 

[ethereal]

The operative date is the date of the marriage; so long as it took place before your I-485 was approved you are fine

So, what you are saying that so long as she maintains valid status here in the US (F-1, or F-1 based OPT, or H-4), I do not necessarily have to apply for her AOS. I could wait for my application to be accepted, and then apply for hers ? I see a distinct advantage in this because the rejection of my application does not have "adverse" consequences on her capability to work (on her F-1 OPT), join another university for a Ph.D. (which is what we really want to do), get an H1-B, etc. Am I correct ?

If she has a valid EAD she is fine, so long as it does not expire before the new EAD arrives. I see no advantages to her having a restricted EAD via OPT when she can get the readl deal via AOS.

Does this mean that she could get onto an F-1 based OPT, and then use it until the AOS based OPT arrived, and switch to that ? What about the time between the AOS application receipt date to the AOS based EAD acceptance date ?

How concerned are you about your own NIW petition?

You've hit the nail right smack in the middle of the head. I am concerned, and that is why I want to make sure the steps I take right now don't come back to bite us. If I associate her AOS to my NIW/I-140/I-485, then a rejection there sets her as out of status. I would want to get her onto a H-4, and so long as I have a valid H-1B, she could have a valid H-4. But with an H-4, her chances of getting an internship or full-time job till next Fall ('05) are next to none. Keeping an F-1 OPT gives her time to intern and then apply for Ph.D. for next fall, maintain her status, and not be dependent on my application. Of course, all this is critical if and ONLY if I can really apply for her AOS "after" my AOS has been approved. On the flip side, applying now (assuming that mine (and hers) will get accepted) has great upsides. Any comments ?

There is no reason to apply for her H-4. As soon as you started her AOS - she is Ok even if her F-1 Expires

But if the AOS is denied (because my NIW was rejected), then she will be out of status. No F-1, no F-1 based OPT, no H-4. What status will she have then ? Post the AOS rejection, can I then apply for her change of status to H-4 ? But change of status from "what status" ? At that point of time, she will have none. Am I correct ?

Thanks again for all the help.

 

[redneck]

But if the AOS is denied (because my NIW was rejected), then she will be out of status. No F-1, no F-1 based OPT, no H-4. What status will she have then ? Post the AOS rejection, can I then apply for her change of status to H-4 ? But change of status from "what status" ? At that point of time, she will have none. Am I correct ?

It's up to you, do whatever you think is more appropriate in your situation. IMHO the best way for you is to start her AOS but at the same time to keep her F1 OPT status for as long as possible.
Moving to H4 is a completely useles step since this will invalidate her F1 status and in order to maintain it she will not be allowed to work.
Independent H1B for her may be a quite good solution in this case. At least this will reduce a risk to be out of status for both you and her in the case if your AOS is denied.

 

[ethereal]

It's up to you, do whatever you think is more appropriate in your situation. IMHO the best way for you is to start her AOS but at the same time to keep her F1 OPT status for as long as possible.
Moving to H4 is a completely useles step since this will invalidate her F1 status and in order to maintain it she will not be allowed to work.
Independent H1B for her may be a quite good solution in this case. At least this will reduce a risk to be out of status for both you and her in the case if your AOS is denied.

But can one "maintain" the F1 OPT if AOS has been applied for ? Does it not get invalidated ? I am thinking that her moving to H4 might be helpful because if my I-140/NIW gets rejected, then she does not go out of status as I revert back to my H1-B, and she reverts back to her H-4 (based on my H1-B).

In order to get her own H1-B, she might have to make the transition directly from F-1, or F-1/OPT to H1-B. I have heard that going from H-4 to H1-B is problematic, although there is no specific precedence of always denying that COS

Thanks again for the help

 

[TheRealCanadian]

But can one "maintain" the F1 OPT if AOS has been applied for ? Does it not get invalidated ?

The OPT shouldn't be automatically invalidated once the adjustment is applied for, although I wouldn't suggest your wife leave the US. Re-entry on AP would probably kill the OPT.

In order to get her own H1-B, she might have to make the transition directly from F-1, or F-1/OPT to H1-B.

If she has a related US degree, I don't see the problem with such a switch. Best to get it filed now before the cap is hit.

 

[redneck]

But can one "maintain" the F1 OPT if AOS has been applied for ? Does it not get invalidated ?

The fact of starting AOS does not invalidate a previous status (no matter what the status is)

The status gets invalidated in the following cases:
1. When I94 is expired
2. When she leaves a country (and returns I94)

To prevent a status from invalidating she has to:
1. Submit a petition to renew status
2. On returning back to the country use a corresponding visa (however if a non-immigrant visa is used in POE it will invalidate AOS, H1B is the only exception)

 

[TheRealCanadian]

On returning back to the country use a corresponding visa (however if a non-immigrant visa is used in POE it will invalidate AOS, H1B is the only exception)

This is incorrect. First, one can use an L-1 to re-enter the country after an AOS is filed. Second, entry with a non-immigrant status does not invalidate the adjustment; in fact, after an adjustment is filed it is almost impossible to re-enter the country in a non-immigrant status and that would cause the adjustment to be abandoned.

 

[redneck]

This is incorrect. First, one can use an L-1 to re-enter the country after an AOS is filed. Second, entry with a non-immigrant status does not invalidate the adjustment; in fact, after an adjustment is filed it is almost impossible to re-enter the country in a non-immigrant status and that would cause the adjustment to be abandoned.

Ok, whatever. Invalidated, abandoned - what's the difference. My point was: don't use non-imigrant visas (except H1, also missed L1) when you are on AOS.
Summary: starting AOS will not invalidate her status itself. Her F1 status will be lost when both of the following is true
- AOS is started
- she left the country after AOS is started

If she wants to leave the country after AOS started she should definitely use AP, H1B or H4 on the way back.

 

[ethereal]

Summary: starting AOS will not invalidate her status itself. Her F1 status will be lost when both of the following is true
- AOS is started
- she left the country after AOS is started

If she wants to leave the country after AOS started she should definitely use AP, H1B or H4 on the way back.

Thanks for the help. However, one thing is not clear: When you say that the F1 status will be lost when "AOS is started", do you one of the following for "started":

A) Application for AOS is received by VSC, and a confirmation (EAC#) is sent back
B) Application for AOS is approved, and an approval is sent back
C) Application for AOS is either approved or denied, and an approval or denial is sent back
D) None of the above, something else

On a related note, Can I apply for her AOS and AP (but no EAD) ? Once the AOS reception confirmation and EAC# would come back and the AP would come back, could she travel on her AP but work on her F-1 OPT ? Or would the F-1 OPT be unusable as soon as the AOS has been started (revist to the "started" above) ? My questions are derived from the need to know that if my NIW/I-140/AOS were denied, whether she could still maintain the F-1 OPT (because she never applied for an AOS based EAD) ?

Thanks again

 

[redneck]

Thanks for the help. However, one thing is not clear: When you say that the F1 status will be lost when "AOS is started", do you one of the following for "started":

A) Application for AOS is received by VSC, and a confirmation (EAC#) is sent back

On a related note, Can I apply for her AOS and AP (but no EAD) ?

Yes

Once the AOS reception confirmation and EAC# would come back and the AP would come back, could she travel on her AP but work on her F-1 OPT ?

No, she couldn't. Once she left the country after AOS is started she lost her F1. F1 is not a dual-intentions visa like H1B it is a pure non-immigrant visa.

Or would the F-1 OPT be unusable as soon as the AOS has been started (revist to the "started" above) ?

It is still usable until she has left the country.

My questions are derived from the need to know that if my NIW/I-140/AOS were denied, whether she could still maintain the F-1 OPT (because she never applied for an AOS based EAD) ?

As long as she keeps this status. Her F1 and AOS are completely independent things untill she looses her I94 with F1 status on it.

 

[ethereal]

Refer to

When you say that the F1 status will be lost when "AOS is started", do you one of the following for "started":

for which you answered

A) Application for AOS is received by VSC, and a confirmation (EAC#) is sent back

And

..whether she could still maintain the F-1 OPT (because she never applied for an AOS based EAD) ?

for which you answered

As long as she keeps this status. Her F1 and AOS are completely independent things untill she looses her I94 with F1 status on it.

I am a bit confused now. Initially you said that the F-1 status would be lost as soon as the AOS application was received by VSC and a confirmation sent. Subsequently, you said that her F-1 and AOS are completely independent. I think I am struggling with exactly the same issue. When does the F-1 become invalid ?

Guys, thanks again for the help and your patience in all this is greatly appreciated.

 

[redneck]

I am a bit confused now. Initially you said that the F-1 status would be lost as soon as the AOS application was received by VSC and a confirmation sent.

Don't mix my answers toghether. That's what you said. I said:

1. When I say application is started - I mean A) Application for AOS is received by VSC, and a confirmation (EAC#) is sent back

2. Her F1 status will be lost when both of the following is true
- AOS is started
- she left the country after AOS is started

 

[GCTake2Long]

We are in an exactly similar situation

My wife is on F1 and will graduate in December. I filed for I140 in March and I485/EAD/AP (along with wife's) in July.

It's a tough decision and initially I was thinking of not applying for her AOS/EAD/AP and doing it only after my application gets approved. After talking to my lawyer, I decided against it. Two separate applications will take too long a time and my lawyer seemed to be confident about my I-140/I-485.(CSC EB2 - staff engineer requiring MS + 3 years)

I may rue the decision though, who knows. Anyways, I spent some time on it and here is what I found out -

1) Her F1 status gets invalidated if she uses AOS EAD

2) Her F1 status gets invalidated if she leaves USA and re-enters on AP

3) Her F1 status gets invalidated if she fails to maintain other F1 status requirements (full-time student, can't work off-campus etc)

4) Applying for AOS/AP/EAD and even approval of AP/EAD do NOT invalidate F1 status.

5) If she maintains F1 status by following 1,2,3 and I140/AOS gets denied during that period, she automatically reverts to F1 from AOS-pending. She will not require a COS application.

6) If possible, it's best not to travel outside USA. Re-entering on AP will cancel F1 status. She may not be able to re-enter on a multiple-entry F1 either because that will lead to abondonment of AOS application.

7) Even after applying/receiving AOS EAD, it's theoretically possible to apply for F1 OPT EAD as it's ok to change your intent once you are in USA. My lawyer said that it's likely that the F1 OPT will be approved, but not guaranted becuase she would already have one EAD. It seemed to be a fuzzy area. We are planning to apply for it anyways (nothing to lose) once the AOS EAD is approved. You can switch back and forth between EADs on a same job also by re-submitting I-9 form. My lawyer said she had seen it happening.

8) Our plan is to have her start working on AOS EAD once she graduates and then file for a H1 as a fallback option if I140/485 does not get approved by that time. I think it's an advantage not to have to depend on H1 during job hunt. But once you are in and doing good work, it's easier to make the company sponsor a H1B.

9) Applying for Phd. could be tricky. It's almost impossible to get a new F-1 visa once you have applied for AOS. But if she does not have to leave and re-enter USA, it may be all right to file for an extension. My wife talked to her School's International Counselor and was told that to continue her MS into a Phd. program, she does not even have to file an application to INS. They can take care of SEVIS records internally. If she is planning to apply to a different university, it may be a bit more complex. In either case, the real problem is getting a new F1 visa for re-entering, not maintaining F-1 status.

Not having the ability to leave and re-enter USA for 4-5 years could be the decisive factor if your wife's first priority is doing a Phd. If that is really important for her and if you think your I-140 is not very sound, it may be worth doing the I485's separately.

 

[TheRealCanadian]

9) Applying for Phd. could be tricky. It's almost impossible to get a new F-1 visa once you have applied for AOS. But if she does not have to leave and re-enter USA, it may be all right to file for an extension.

Your summary is pretty accurate and more or less matches what I believe. This one issue, however, probably should be ammended to note that there is nothing that prevents the wife from going into a Ph.D program with a pending adjustment; one does NOT need an F-1 (or any other non-immigrant status) to study part-time or full-time if there is a pending I-485.

However, should the adjustment get denied, there is still the issue of having a "fall-back" status to return to.

 

[ethereal]

It's a tough decision and initially I was thinking of not applying for her AOS/EAD/AP and doing it only after my application gets approved. After talking to my lawyer, I decided against it. Two separate applications will take too long a time

But even if yours had gotten approved (and hence you had a plastic card, or a valid AP), you could have applied for her AOS based on your approval and gotten her an EAD/AP as well. Then it would have been a matter on only time; long time, I agree. Are there any problems in the dependents/derivatives AOS being denied even if the primary AOS has been approved ?

3) Her F1 status gets invalidated if she fails to maintain other F1 status requirements (full-time student, can't work off-campus etc)

What about working on the F-1 based OPT EAD ? One could be on F1 status and work off-campus on an OPT (of course it is restricted to whatever is left of 1 year of OPT time that is allowed)

5) If she maintains F1 status by following 1,2,3 and I140/AOS gets denied during that period, she automatically reverts to F1 from AOS-pending. She will not require a COS application.

And if she were on an F1 based OPT EAD ? Would she automatically revert back to that status, provided she did not use the AOS EAD, did not travel and enter on the AP, maintained status using the OPT EAD (not full-time stundent) ?

7) Even after applying/receiving AOS EAD, it's theoretically possible to apply for F1 OPT EAD as it's ok to change your intent once you are in USA. My lawyer said that it's likely that the F1 OPT will be approved, but not guaranted becuase she would already have one EAD. It seemed to be a fuzzy area. We are planning to apply for it anyways (nothing to lose) once the AOS EAD is approved. You can switch back and forth between EADs on a same job also by re-submitting I-9 form. My lawyer said she had seen it happening.

But by applying for a F1 based OPT EAD, would you not be declaring the intent to work "temporarily" even though by applying for the AOS/EAD/AP earlier you had declared an intent to be here "permanently" ? Would this not be a problem ?

9) Applying for Phd. could be tricky. It's almost impossible to get a new F-1 visa once you have applied for AOS. But if she does not have to leave and re-enter USA, it may be all right to file for an extension. My wife talked to her School's International Counselor and was told that to continue her MS into a Phd. program, she does not even have to file an application to INS. They can take care of SEVIS records internally. If she is planning to apply to a different university, it may be a bit more complex. In either case, the real problem is getting a new F1 visa for re-entering, not maintaining F-1 status.

Not the same case here. My wife will be applying for a different university, and this is not going to be a transfer case. It has to be a new application, hence a new I-20, and hence a new visa. If it had been the same university, maybe things would be easier.

Not having the ability to leave and re-enter USA for 4-5 years could be the decisive factor if your wife's first priority is doing a Phd. If that is really important for her and if you think your I-140 is not very sound, it may be worth doing the I485's separately.

I agree. I am not too confident about the I-140/NIW application. It is too risky to attach her right now as the derivative, and let us be hostage to the rejection of that NIW application.

On a connected note, someone on the other thread has suggested (well I did ask for a clarification) that the I-485 for a derivative has to be applied either with the primary applicant or "before" the I-485 of the primary applicant is approved. That seems not correct, don't you think ?
Here is a link to that thread: http://www.immigrationportal.com/showthread.php?t=141463

Thanks again for the help

 

[GCTake2Long]

Please do not trust my answers and talk to a lawyer to confirm everything. I am answering based on what I found out from my lawyer and the internet.

But even if yours had gotten approved (and hence you had a plastic card, or a valid AP), you could have applied for her AOS based on your approval and gotten her an EAD/AP as well. Then it would have been a matter on only time; long time, I agree. Are there any problems in the dependents/derivatives AOS being denied even if the primary AOS has been approved ?

No, I do not think there are any other problems. Time is the only issue. Considering CSC takes 1.5-2 years for AOS, it would take at least 3 years before her AOS would be approved if I had not applied together.

What about working on the F-1 based OPT EAD ? One could be on F1 status and work off-campus on an OPT (of course it is restricted to whatever is left of 1 year of OPT time that is allowed)

Yes, according to my lawyer, if she is working on F1 OPT and AOS is denied during that time, she will be allowed to complete the rest of the 1 year period and potentially file for a H1B and continue working.

And if she were on an F1 based OPT EAD ? Would she automatically revert back to that status, provided she did not use the AOS EAD, did not travel and enter on the AP, maintained status using the OPT EAD (not full-time stundent) ?

Yes.

But by applying for a F1 based OPT EAD, would you not be declaring the intent to work "temporarily" even though by applying for the AOS/EAD/AP earlier you had declared an intent to be here "permanently" ? Would this not be a problem ?

Yes, it does seem a bit odd. As I said, my lawyer was a bit hesitant in addressing it. She said that it's "likely" that F1 OPT would be approved. She had a precedence in mind but wasn't sure in what order the EAD's were applied in that case. According to her, you cannot have a dual intent on F1 when you enter USA, but you can change your intent later. Whether you are still eligible for the benefit that comes with the original intent is questionable. It's probably safer to file for F1 EAD first and then file for AOS EAD or do not file AOS EAD at all, just file for AOS and AP.

Not the same case here. My wife will be applying for a different university, and this is not going to be a transfer case. It has to be a new application, hence a new I-20, and hence a new visa. If it had been the same university, maybe things would be easier.

It's extremely unlikely that she will ever get a new F1 after applying for an AOS. If the rejection happens before she starts the program, her only option will be to pursue Phd on H4 which has two serious problems -

a) No RA/TA/internships
b) you will have to make sure that your H1 is safe for next 4-5 years. If you are near the 6 year limit and 140 gets denied, it will be hard to ensure that.

If the rejection happens after she starts PHd as AOS-pending, then she goes out of status when AOS/140 is denied. Typically you would get a RFE/intent to deny notification and immediately file for a H4 to keep her in status. But the two constraints mentioned above still remain.

I agree. I am not too confident about the I-140/NIW application. It is too risky to attach her right now as the derivative, and let us be hostage to the rejection of that NIW application.

Yes, I think your concern is legitimate. I had the same concern, but finally overcame it because my wife's order of priorities are -
a) complete MS and get a job. Since she is doing MS in CS, she will probably be able to get someone to sponsor a H1b, so there is a backup.
b) if she does not get a job she likes, she will continue her Phd under the same professor - that's probably doable by extending F1 status and not leaving USA even after 140/AOS gets denied

She is not keen on applying for a Phd to a different school. If that were his first priority, I probably would have gone for separate AOS applications.

On a connected note, someone on the other thread has suggested (well I did ask for a clarification) that the I-485 for a derivative has to be applied either with the primary applicant or "before" the I-485 of the primary applicant is approved. That seems not correct, don't you think ?
Here is a link to that thread: http://www.immigrationportal.com/showthread.php?t=141463

I believe that's incorrect. I believe if your wife is in USA, she should be able to apply for I485 even after your application is approved. But please confirm with a lawyer.

If that contention turns out to be correct, you may want to consider the following plan-

I am not familiar with VSC processing times. If you think there will be a significant gap between 140 approval and 485 approval even though they were applied concurrently, you may think of applying for her AOS/EAD/AP during that gap i.e. after 140 is approved. But it's a risky play, they may be approved together.

Thanks again for the help

 

[ethereal]

Please do not trust my answers and talk to a lawyer to confirm everything. I am answering based on what I found out from my lawyer and the internet.

Alright . I was not going to do that. I will confirm everything. Thanks again for the help. I am glad that someone with a similar situation is posting on these pages to help others out with the same situation

Yes, according to my lawyer, if she is working on F1 OPT and AOS is denied during that time, she will be allowed to complete the rest of the 1 year period and potentially file for a H1B and continue working.

And if she were on an F1 based OPT EAD ? Would she automatically revert back to that status, provided she did not use the AOS EAD, did not travel and enter on the AP, maintained status using the OPT EAD (not full-time stundent) ?

Yes.

This is very helpful. Is there a specific document that you can point me to that confirms this ? Some official BCIS doc ? Or do you suppose lawyers (if mine is competent enough, which is yet to be seen) will know this because they have encountered cases like these before ? I was just wondering that if my lawyer didn't know, I could point him to some documents.

It's extremely unlikely that she will ever get a new F1 after applying for an AOS. If the rejection happens before she starts the program, her only option will be to pursue Phd on H4 which has two serious problems -
a) No RA/TA/internships
b) you will have to make sure that your H1 is safe for next 4-5 years. If you are near the 6 year limit and 140 gets denied, it will be hard to ensure that.

I agree with you. Having a RA/internship is critical, especially if the program has a lot of credit requirements. Automatic tuition waivers mean a lot. BTW, do you suppose someone on an H-4 (ie. no F-1, no EAD) could get tuition waivers ? Waivers are not a "pay" per-se ! If you don't work, but still get a waiver, would that be against the rules of H-4 ? Just wondering...

As far as a safe H1 is concerned, that is something I don't really know. I don't know anyone who knows... but maybe I am hanging with the wrong crowd. As far as NIW/I-140 denial is concerned, I am in the process of applying for traditional Labor Certification in New Jersey. Since the two processes (NIW/I-140/Fedral/BCIS and LC/NJ/Dept of Labor) are separate and don't amount to frivilous filing of the same application; I have been told that having one does not invalidate the other. If the NIW/I-140 is denied, I could still extend the H1-B based on a LC pending for more than 365 days.

I am not familiar with VSC processing times. If you think there will be a significant gap between 140 approval and 485 approval even though they were applied concurrently, you may think of applying for her AOS/EAD/AP during that gap i.e. after 140 is approved. But it's a risky play, they may be approved together.

Well, thanks again for the tips. I will run it by the lawyer (if I can get him on the phone). I have applied for NIW/I-140/AOS together, and it is quite possible that they might get adjudicated together. Who knows ? But, thanks anyway