Maintaining status if the PR application is denied

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being_intrigued

Registered Users (C)
Hello all:

My first post here on this forum, hope to get some response/opinions from the learned folks here.

Facts: I am on H1B1 (I-94 valid till August 2004) and am nearing 3.5 years of H status. My Spouse is a grad student on an F1 (I-94 indicates 'D/S' - I20 and visa valid till 2005). My employer has filed an EB-3 I-140(Perm)/I-485(AOS)/I-765(EAD)/I-131(Parole) in August 2003 where i have included my spouse as a derivative beneficiary.

Questions:

1. My spouse is looking to finish school in April 2004(so her F1 status is gone by the time school is over). We hope to have the EAD & AP by then for her and myself - this gives her the option of working on the basis of the EAD and travelling on the basis of the AP after April 2004 . What happens to her status if the I-140/I485 gets denied in May 2004? Is she considered out of status as of the date of her finishing school? Remember that i have a valid H1B1 and am safe as regards status but her F1 status is gone once she is graduated.

2. Would it be prudent to get her a H4 right after she finishes school so that even if the I-140 get denied both of us maitain our statuses?

3. If she has to get a H4 when/how does she apply for it. If she goes to our home country to get a H4 based on my H1 - isnt it highly likely that the consulate will refuse if we disclose that we are in GC processing? If she does an AOS from F1 to H4 being in this country which form should she use and what are the pitfalls of this method.

Thanks for your time.
 
1. She has lost her F1 status the day you applied for I-485. This is the difference between H1 and F1. H1 and Pending AOS can co-exist. But I-485 and F1 cannot co-exist.

2 Until you are on H1 she can convert to H4 at any time. But she may have to go out country and come back.

3. F1 to H4 you can do it here but Pending AOS to H4 she has to go out of country and come back. In any case once she goes out of country she need stamping again

This is based upon the limited knowledge gathered from this forum. Talk to your attorney. If I am wrong somewhere Please let know.
 
Thanks for the useful inputs.

Just to clarify my question in the second part of #1

- I-485 RD/ND was Aug 2003 - thus this is also the date when the F1 status was lost. Now if the the GC(485||140) is denied in Aug 2004(which also means the interim EAD is gone as well) - is she considered out of status as of Aug 2003? If she is then it will be near impossible to get an H4 as well - having been out of status for so long.
 
No it should not be an issue. USICS will inform you before denial. They will send you an intent letter. At that time you have to go out US come back with new H4 stamping. So she never went of status.

But here is my dilemma. Your wife is working F1/OPT. Now you applied for I-485. F1 becomes invalid. Should she be working until you EAD based upon I-485? Any one please
 
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But how much different is the F1/OPT based EAD than the I-485 based EAD? Both use the same I-765 forms to apply and i dont see any reason why the benefits accruing from either flavours of the EAD be any different.
 
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