Can my wife file for I485 when on F1 visa?

A

ag_ajay

Registered Users (C)
I want to file I140 and I485 concurrently but my wife is on F1. Can I file for I485 if she is on F1 or do I need to get her transferred to H4?

If so how long does H4 premium processing take?
And generally speaking how long does I140 take to get approved in California?
 
Depends on lawyer!

I would say it depends on your lawyer. My friend's lawyer didn't have any problems applying for his I485 when his wife was on F1. Both cases were approved.

But my lawyer refused to apply for the following reason: H1 has intent of immgrating and F1 does not have the intent of immgrating. If I apply for I485, that would violate the non-immgrating clause of F1.

I personally think my lawyer took the ultra-conservative route. Despite giving my friend's experience, she didn't budge! Talk to yours and see what happens!
 
Hi,
I was on H1 and my wife was on F1 when we applied our 140 and 485 at Nebraska. So far no RFEs. Still long way to go before approval. Also, one thing thats going to happen is, once F1 holder applies for 485 he/she will loose F1 status.
-Ramesh
 
Thanks GRamesh and bajis!!

Hi Ramesh,

So once I file for I485 for her, which nonimmigrant VISA would she be on? Can she still go to the school?

Thanks,

Ajay
 
Hi Ajay,
before applying for 485 we checked with International Students Office (ISO) in my wife's college. What they said was as soon as F1 holders apply for 485 they will loose their F1 status. The new status will be 'pending AOS' or 'pending Adjustee' (i dont remember exact name). She can still go to school. I am not sure whether these rules are college specific. so, check with ISO at your wife's college.
thanks,
-ramesh
 
Hi Ramesh,

I checked directly with an INS officer today. She told me that filing for I485 for a spouse who is on F1 is allowed. and that my wife will need to inform her school that her status is I485 pending. I guess she will have to fill out some kind of form in the University for that purpose.

So there:) I asked my lawyer to go ahead with concurrent filing.

Thanks for your help,

Ajay
 
Many lawyers hesitate to file I485 if spouce is in F1 status(or other than H4 status for that matter) because they should be extra cautious in document preparation. I have a friend whose wife was in F1 status and they are waiting approval. I have heard, with such cases it is 90% chance that you will be called for interview in local INS office.
 
Hi Secondthought,

Thanks for the tip. If I wait for my wife's H4 it will be another 4 months. Once I file I485 for her, her status is automatically cancelled. So we decided to go ahead. I guess even if we have to face an interview it should be OK. Everything involves risks these days..can't help it.
Not only that, my wife also double checked with another officer today and he told that "that it is OK to file on F1 as you are not the first person in history to do it :)"

Ajay
 
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