Filing I140/485 concurrently Can F1 Spouse change status to H1

[jerryseinfield]

My I140/I485 will be filed concurrently soon. I am on H1 while my husband is an F1 student. He applied for OPT about a month ago because he will start work soon, we are hoping that he's getting his OPT EAD shortly. We didn't include I-765 application for him this time since he doesn't need it at this point.

My questions are:
1) Someone said that once our I485s are filed, we are considered as in AOS stage, hence, my husband will loose his non-immigrant status as soon as his OPT is expired. Is this correct?

2) We'd prefer to have him change F1 to H1 sometime next year before his OPT expires. Would this invalid his AOS?

Thanks for your input.
JS

 

[Want GC Soon]

Hi Jerryseinfield,

My I140/I485 will be filed concurrently soon. I am on H1 while my husband is an F1 student. He applied for OPT about a month ago because he will start work soon, we are hoping that he's getting his OPT EAD shortly. We didn't include I-765 application for him this time since he doesn't need it at this point.

My questions are:
1) Someone said that once our I485s are filed, we are considered as in AOS stage, hence, my husband will loose his non-immigrant status as soon as his OPT is expired. Is this correct?

Ans: Yes if you are filing 485, then you are considered adjustment of status. You cannot change to F1 in this case as in the application I539 you would be asked what your current immigration status. You cannot write non-immigrant at that point which would contradict your entire statement/status.

2) We'd prefer to have him change F1 to H1 sometime next year before his OPT expires. Would this invalid his AOS?

Ans: He can work on OPT for now and then when he gets EAD, he can start working on it immediately. Dont change to H1B as its non-immigrant status. You are already into AOS. THen INS would clearly understand that you dont know what your intention is and you look more confused of what your status is??

Hope this helps..

Want GC Soon

Thanks for your input.
JS

 

[jerryseinfield]

Thank you for the reply, Want GC soon.

I think your interpretation is absoultely correct for non-concurrently filing cases, because usually people would file AOS after their I-140 is approved. However, in the case of current situation, there is risk if someone's I-140 gets trouble. I personnally think this is a new issue raised by concurrent filing. It is always better off to have 2 H1Bs in a family, isn't it? Perhaps there are not that many cases like ours.

What should we do? Add his I-485 later?

JS

 

[Jharkhandi]

File your 140/485. Let your husband work on OPT EAD(by the way what is rational of using OPT EAD versus 485 EAD?). Once you are done with OPT EAD - file his 485. If you are not eccentric about using OPT EAD - file his 485 right now. Meanwhile let him work on OPT EAD, till you get 485 EAD.

You can get him on H1b visa later as it is dual intent visa. To get on H1b visa - he will have to go out of USA, get it stamped and re-enter. The problem will be that you started with a non immigrant visa(F1) - changed to immigrant visa(AOS) and coming back to dual intent visa - something that you might like to reconsider about defending in consulate if it arises.