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I-485 spouse on F1
- Thread starter mougc
- Start date
In general, you should wait for your I-140 approval before filing for your spouse on F-1. The reason being that as soon as you get EAD/AP etc. and start using it, your spouse will automatically forgo F-1. Additionally, for any god forbid reasons, if there is problem in I-140 approval, your spouse could potentially get out of status.
My advice-wait for I-140 approval before filing I-485 (at least for your spouse).
My advice-wait for I-140 approval before filing I-485 (at least for your spouse).
...as soon as you get EAD/AP etc. and start using it, your spouse will automatically forgo F-1. Additionally, for any god forbid reasons, if there is problem in I-140 approval, your spouse could potentially get out of status.
That doesn't sound right to me. This would be true if the spouse was F-2 (dependent), but F-1 is not a dependent visa. It is a standalone status that is not contingent on the status of a spouse. Am I missing something here?
Here's what I think is correct: A person will remain in F-1 if he or she applies for adjustment of status (or her spouse does and she is a derivative applicant, as your case is). She will continue to be in F-1 status until a- her status expires which is when her I-20 expires or she drops out of school or graduates, whichever is sooner, or b- she leaves the country, after which she cannot be readmitted as an F-1 and will need to have an approved advanced parole before she travels.
No, and here is why:
1- According to INS rules, if a person applies for adjustment of status and then leaves the country without obtaining advanced parole beforehand, that person is deemed to have abandoned their adjustment application. (There are exceptions, such as H visas, but F visas do not fall under this exception).
2- So technically she might be able to return as an F-1 student (but her adjustment application will be denied). However, then she runs into another problem: She is trying to enter the US as a non-immigrant (F-1) even though she is an applicant for a green card. So even though her green card will be denied, she still clearly showed intent to immigrate by applying. Therefore, she may very well be denied entry by the agents at the port of entry.
You are better off finding out if the a school will still enroll a student who is on "parolee" status (adjustment applicant) instead of F-1. I don't know the answer to this question myself. But that's the law as far as AOS and non-immigrant visas. Another option will be to ask the school if H-4 individuals can continue studies (for example, J-2 dependents can, but you need to ask about H-4, or search this web site for the answer). If so, then you can change her status to H-4 (as you are H-1B) and, as H visas are an exception to the advanced parole rule, she can travel and return on H-4 while her I-485 is pending with no problems, and continue her studies. The disadvantage of this option is that, if she is allowed to study, she will still not be allowed to work as H-4. She can apply for employment authorization if she wants (EAD) because of her I-485, but if she uses it, she loses her H-4 status and becomes an "adjustment applicant" subject to the advanced parole rules.
Hope you're not confused....
1- According to INS rules, if a person applies for adjustment of status and then leaves the country without obtaining advanced parole beforehand, that person is deemed to have abandoned their adjustment application. (There are exceptions, such as H visas, but F visas do not fall under this exception).
2- So technically she might be able to return as an F-1 student (but her adjustment application will be denied). However, then she runs into another problem: She is trying to enter the US as a non-immigrant (F-1) even though she is an applicant for a green card. So even though her green card will be denied, she still clearly showed intent to immigrate by applying. Therefore, she may very well be denied entry by the agents at the port of entry.
You are better off finding out if the a school will still enroll a student who is on "parolee" status (adjustment applicant) instead of F-1. I don't know the answer to this question myself. But that's the law as far as AOS and non-immigrant visas. Another option will be to ask the school if H-4 individuals can continue studies (for example, J-2 dependents can, but you need to ask about H-4, or search this web site for the answer). If so, then you can change her status to H-4 (as you are H-1B) and, as H visas are an exception to the advanced parole rule, she can travel and return on H-4 while her I-485 is pending with no problems, and continue her studies. The disadvantage of this option is that, if she is allowed to study, she will still not be allowed to work as H-4. She can apply for employment authorization if she wants (EAD) because of her I-485, but if she uses it, she loses her H-4 status and becomes an "adjustment applicant" subject to the advanced parole rules.
Hope you're not confused....
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Make sure you understand F-1 status and working on EAD. If are on F-1, you can work MAX of 20 hrs/week on campus (regularly) or 40hrs/week during holdiays. You CAN'T work at all off campus on an F-1. If you use EAD, and start using it for off campus employment while on an F-1, the whole ball game changes-which is you abandon F-1.
I have been in the same boat as you are. My spouse first filed for EB1, got approved and then we filed for I-485 together. Our lawayers categorically discussed the F-1 issue and advised us to wait.
At the end of the day, you probably are thinking of a few months delay for filing I-485 if you don't file it concurrently. As an F-1, you spouse can continue to work and get assistantship which he/she can not on an H-4. I would avoid F-1 to H-4 etc. It's just not worth it. Talk to your lawyer.
I have been in the same boat as you are. My spouse first filed for EB1, got approved and then we filed for I-485 together. Our lawayers categorically discussed the F-1 issue and advised us to wait.
At the end of the day, you probably are thinking of a few months delay for filing I-485 if you don't file it concurrently. As an F-1, you spouse can continue to work and get assistantship which he/she can not on an H-4. I would avoid F-1 to H-4 etc. It's just not worth it. Talk to your lawyer.
Thank you jk and sunmicro for your advice. I really appreciate your help and taking the time to answer my queries. Thanks a lot.
In summary, Since my spouse does not have any plans of using her EAD for outside employment.. so I think I shall wait for I-140 approval before filing for 1-485.
Since in case of emergency she cannot travel as she will have to use her AP and lose her F1 and then if there is I-140 denial then she would be in trouble. Also at the time of reentry if she chooses her F1 then she will have to lose the I-485 application. So I guess its better to wait.
Thanks for the insights. I shall check with my lawyer too as suggested.
In summary, Since my spouse does not have any plans of using her EAD for outside employment.. so I think I shall wait for I-140 approval before filing for 1-485.
Since in case of emergency she cannot travel as she will have to use her AP and lose her F1 and then if there is I-140 denial then she would be in trouble. Also at the time of reentry if she chooses her F1 then she will have to lose the I-485 application. So I guess its better to wait.
Thanks for the insights. I shall check with my lawyer too as suggested.
Thanks sunmicro for your reply.
What would be the scenario if my wife does not use her EAD or AP and continues her studies/fellowship on F1. Then would it effect her F1 visa status if my I-140 gets denied.
Since F1 is a single intent visa she can't maintain the dual status (both F1 and AOS). So it is a good idea to wait for the I-140 approval. If she doesn't work of get apid then get her status changed to h4 because H4 can be a student and then she can stay as H4 w/o using EAD or AP and have 485 pending.
AOS is not a "status", it is a period of authorized stay in the US. So you can be in F-1 (or whatever else) status while your AOS application is pending, but if that status expires (because the program expires, or because of graduation or leaving the country and returning as a parolee), that person will be "out of status" but "under authorized stay".
Hello,
I am also in a similar situation. I can now file for 485 since PD is current (PD Feb 2005). My spouse did COS from H4 to F1 last year (doesn't have F1 visa stamp in the passport). I understand that i can apply for her a485 as well even though she is on F1...
In my case my I-140 is pending (filed in December, current processing is November).. but i don't think i can wait for I140 approval, because in 1-2 months my PD may not be current.. So i think, if i want to file, it would be best to file in july itself for 485..
Though wanted to understand the impacts that it will have on her F1.
1. I guess we'll need to file EAD and AP as well for her travel outside, right?
2. I am still unclear on the period from filing 485/ead/ap to EAD approval.. Can she continue studies on her F1 status? Can she also work on RA/TA or CPT? (I understand that she can't apply for OPT but CPT would be ok?)
3. Once she gets EAD, then at that point she can stop working on CPT and start using EAD to work at the same place, right?
4. If she graduates before she gets her EAD, then she's done wth F1 status, but can stay leagally in US but only work after EAD comes, is that ok?
5. Is it safe to assume that if 485/EAD/AP is applied in July, then we can expect ead/ap to come within 6 months? Or can it take longer?
Any info on this will be very useful... Thank you very much!
I am also in a similar situation. I can now file for 485 since PD is current (PD Feb 2005). My spouse did COS from H4 to F1 last year (doesn't have F1 visa stamp in the passport). I understand that i can apply for her a485 as well even though she is on F1...
In my case my I-140 is pending (filed in December, current processing is November).. but i don't think i can wait for I140 approval, because in 1-2 months my PD may not be current.. So i think, if i want to file, it would be best to file in july itself for 485..
Though wanted to understand the impacts that it will have on her F1.
1. I guess we'll need to file EAD and AP as well for her travel outside, right?
2. I am still unclear on the period from filing 485/ead/ap to EAD approval.. Can she continue studies on her F1 status? Can she also work on RA/TA or CPT? (I understand that she can't apply for OPT but CPT would be ok?)
3. Once she gets EAD, then at that point she can stop working on CPT and start using EAD to work at the same place, right?
4. If she graduates before she gets her EAD, then she's done wth F1 status, but can stay leagally in US but only work after EAD comes, is that ok?
5. Is it safe to assume that if 485/EAD/AP is applied in July, then we can expect ead/ap to come within 6 months? Or can it take longer?
Any info on this will be very useful... Thank you very much!