F1 to AOS: AP+EAD?

B

bdeshpa

New Member
I came here on F-1 visa which is valid till 2008. I married an H-1 visa holder and we have filed our AOS applications (with me as derivative). We are travelling to India in December. My husband plans to get back on his valid H1 visa. I understand that F-1 is no longer valid once AOS is filed and hence I have applied for my advance parole and EAD.

So do I need both AP and EAD approved before travelling out inorder to return back to US?

Is anything else needed?
 
Spouse's F1 cancelled if you apply for AOS?

bdeshpa said:
I came here on F-1 visa which is valid till 2008. I married an H-1 visa holder and we have filed our AOS applications (with me as derivative). We are travelling to India in December. My husband plans to get back on his valid H1 visa. I understand that F-1 is no longer valid once AOS is filed and hence I have applied for my advance parole and EAD.

So do I need both AP and EAD approved before travelling out inorder to return back to US?

Is anything else needed?
Click to expand...

Is that true if you apply for AOS, your spouse's F1 visa get cancelled? I am in the same situation. My wife is f1 student and getting assistantship. My 140 approved and we applied for AOS.
 
Yes thats true bcos like H1B F1 does not enjoy dual intent status and hence your spouse's status will be AOS pending but I am pretty sure that she can still study
 
F1-aOS-AP/EAD

th4gc
another way of looking at it is:
once AOS is filed for you and your spouse, your wife switches to pending AOS status. You could be on H1 or EAD (pending AOS) its upto you.
Now if your spouse does not go out of the country then its fine she can continue studying on pending AOS status and F-1 is not explicitly cancelled. However if she does go outside the country she can no longer come in on F-1, it gets cancelled at POE, hence what she needs is an AP to travel. Also once that happens and F-1 is cancelled, to maintain assistantship she will then need an EAD.

I am going through identical situation and this is what I have learnt on this
forum thanks to ginnu, pralay and other gurus :)

Hope that helps.

TH4GC said:
Is that true if you apply for AOS, your spouse's F1 visa get cancelled? I am in the same situation. My wife is f1 student and getting assistantship. My 140 approved and we applied for AOS.
Click to expand...
 
DO I need her to chnage to H4?

maverick13 said:
th4gc
another way of looking at it is:
once AOS is filed for you and your spouse, your wife switches to pending AOS status. You could be on H1 or EAD (pending AOS) its upto you.
Now if your spouse does not go out of the country then its fine she can continue studying on pending AOS status and F-1 is not explicitly cancelled. However if she does go outside the country she can no longer come in on F-1, it gets cancelled at POE, hence what she needs is an AP to travel. Also once that happens and F-1 is cancelled, to maintain assistantship she will then need an EAD.

I am going through identical situation and this is what I have learnt on this
forum thanks to ginnu, pralay and other gurus :)

Hope that helps.
Click to expand...

Thanks Maverick and Jaggey.
Let me elaborate the situation a little. Her F1 will expire in Dec and so will her degree. After that do I need her to be in H4 (as I am in H1) to go out of the country or to maintain status? We have AP and EAD approved. Thanks again. You guys are great in this forum.
 
Maintaining F1 status

I am on H1B and my wife is on F-1. I have concurrently filed I-140/I-485. My question is that does the filing of AOs automatically invalidates her current status, as F1 is non-immigrant visa. And, hypothetically if my I-140 gets rejected, what happens then. does she maintain her status? I believe this should not effect her status as I140 got rejected and not I-485.
Please comment.
Thanks
 
TH4GC said:
Let me elaborate the situation a little. Her F1 will expire in Dec and so will her degree. After that do I need her to be in H4 (as I am in H1) to go out of the country or to maintain status? We have AP and EAD approved.
Click to expand...

No. The pending I-485 keeps her in status, and the AP will let her re-enter the country.
 
Thanks

TheRealCanadian said:
No. The pending I-485 keeps her in status, and the AP will let her re-enter the country.
Click to expand...

Thanks a lot TheRealCanadian. It's very comforting to know that.
 
If AP is approved she does not need to go on H-4 as she can travel on valid AP. Also she can work on the valid EAD.
However if by any chance primary's 140/485 gets rejected spouse goes out of status in this case.
If spouse is on H-4, then even if primary's 140/485 is rejected then spouse can continue on H-4 as long as primary has valid H-1 ofcourse.


TH4GC said:
Thanks Maverick and Jaggey.
Let me elaborate the situation a little. Her F1 will expire in Dec and so will her degree. After that do I need her to be in H4 (as I am in H1) to go out of the country or to maintain status? We have AP and EAD approved. Thanks again. You guys are great in this forum.
Click to expand...
 
Raj97
If 140 is rejected then 485 is automatically rejected for primary as well as spouse, this is my understanding. Others please comment on this.

Raj97 said:
I am on H1B and my wife is on F-1. I have concurrently filed I-140/I-485. My question is that does the filing of AOs automatically invalidates her current status, as F1 is non-immigrant visa. And, hypothetically if my I-140 gets rejected, what happens then. does she maintain her status? I believe this should not effect her status as I140 got rejected and not I-485.
Please comment.
Thanks
Click to expand...
 
that's true. If I-140 is rejected then there is no basis for I-485 AOS. So if you have non-immigrant visa like F1, H1, you are then be returned back to where your original status is.

Once you are in I-485 status all your non-immigrant visa is no longer valid. Of course you can still travel with AP, but not for those illegals who are filing AOS on 245i. Once you leave this country you are banned by the 3 years or 10 years limitations.
 
maverick13 said:
If spouse is on H-4, then even if primary's 140/485 is rejected then spouse can continue on H-4 as long as primary has valid H-1 ofcourse.
Click to expand...

But if the spouse wishes to work, then there is no point to getting the H-4.
 
Oh I thought spouse could be on H-4 and work on EAD. I thought in that case spouse can travel on H-4, and work here in the US on EAD (through pendin AOS status).
But I guess you are saying thats not possible, thanks.


TheRealCanadian said:
But if the spouse wishes to work, then there is no point to getting the H-4.
Click to expand...
 
maverick13 said:
Oh I thought spouse could be on H-4 and work on EAD. I thought in that case spouse can travel on H-4, and work here in the US on EAD (through pendin AOS status). But I guess you are saying thats not possible, thanks.
Click to expand...

No, it's not possible. H-4 holders cannot work, so employment (even if authorized via an EAD) is a violation of H-4 status and invalidates the visa.
 
TheRealCanadian,

I wanted to take your opinion too in this.

I had posted this question last week and GINNU gave affirmative answer.
But my lawyer said exactly opposite, below is my case

My question was, if my wife (on h4) uses her EAD , and travels to Indian in Dec without AP (bcoz we may not get AP approved by then) . In that case can she get new h4 visa stamped in Mumbai (we have approval notice). If yes then will that change her status back to h4, if yes can she come back to EAD status once she is back to USA and starts workimg again.

My lawyer today said, she will not get H4 visa stamped once she tells that she is working on EAD. -- Is there a way that they would that my wife is working on EAD ?

But is this not the exact step that one takes to get back onto H4 status when have used EAD and incase any proble comes with 485 then, get out of country and reeneter using valid H4 stamp (as primary applicant has maintained H1 status). If yes, then this means that she will be back on h4 status correct ? so what will happen to her EAD. Do we have to file it again or can use the exisitng one and she will automatically back to EAD status ??

what I have also read Murthy.com is if 4 person uses EAD then, that person ahs to travel using AP only.

can you please clarify what do you think about this.

thanks,
 
Thanks maverick13 and buzzhd
This means that I-485 wont kick in untill I-140 is approved and Nothing happens to current non-immigrant status until the processing of I-485 starts.
Any other comments..

buzzhd said:
that's true. If I-140 is rejected then there is no basis for I-485 AOS. So if you have non-immigrant visa like F1, H1, you are then be returned back to where your original status is.

Once you are in I-485 status all your non-immigrant visa is no longer valid. Of course you can still travel with AP, but not for those illegals who are filing AOS on 245i. Once you leave this country you are banned by the 3 years or 10 years limitations.
Click to expand...
 
babyluck said:
what do you think about this.
Click to expand...

Here's the thing - it's risky. It depends a great deal on wether the consular officer wants to be a jerk or not.

If he does, he'll notice her pending I-485 and ask if she has an EAD. He'll then ask her if she was working. Does she still have the job? If she says yes, then he can deny the H-4 visa stamp right there, since she intends to violate her status. That's grounds for visa denial.

What are the chances of this? I cannot say. Both my wife and I were visa-exempt so we never had a consular interview. However, there is a risk of this, and if the visa is denied and she has no valid AP, she has a serious, serious problem.

That's why USCIS warns everyone not to leave without either AP or a valid visa stamp, since there's no guarantee that the consulate will give out the stamp.
 
that's right. I-485 won't kick in till I-140 is approved and till your PD is current. Nowadays, everyone is talking about retrogression, so if no PD is current you can't file I-485 period. Nothing will bother non-immigrant visa as long as it is valid.
 
Thanks TheRealCanadian,

just to argue on the point that the consular office might ask, whether she used EAD , we will YES.
If he asks will she continue working, for this question we will say NO. And will give good reason for discontinung EAD, and thus wants to get back onto h4 status. Will that help to get the stamp in case the situation arises as you explained.

After this, do you think there might be a problem at port of entry, as even they will come to know about EAD usage and AP pending. Will that create any issue ?

Please reply .

thanks
 
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