On F-1 and I-485 filed

Z

zipzap

Registered Users (C)
Hi,

My spouse is on F-1 (till may 2004) and I am on an H-1B with I-1485 pending. I am planning to add my spouse to my 485 appilcation but things at our office seem a little shaky (layoffs).

If I were to loose my job, what would my spouse's status be? Would he be out of status? Or would he still be on F-1 but have a risk of travel outside?
I would really appreciate inputs.

Thanks
 
1. If you are on 485, and have been waiting for 180 days then you can use AC21 to change jobs. In which case you are safe.

2. If you haven't been waiting for 180 days, as long as your employee doesn't withdraw your 485 application, you are still safe.

3. If you haven't been waiting for 180 days and your employer withdraws your 485 application, then you are out of status and need to get back onto your H1.

In the first 2 cases your spouse will not be affected, and can continue his studies/AOS processing, upon your primary application. In the third case, his school will ned to reissue an I-20 in order for him to remain in status. He will not need to leave the country to get a visa but can continue to study here.

In the first two cases, there are no problems to leave/enter the country on AP. If you decide to wait the 180 day period and he plans to leave/enter the country on his F1 there are no problems, just that he cannot have a 485 application pending when he enters the country on a F1. This has been much discussed, look up the archives for more information.
 
more questions

Thanks I140_takes_4ever for your response.

I looked through the archives but didn't find what I needed.
I was looking for some further clarification and would appreciate it if you could point me to some thread or be able to answer.

- Its been more then 180days since I filed. (Oct 02)

My concern is if I loose my job and assuming I don't find something by the time an RFE is made what happens to me and my spouse?

Since an F-1 is a not a dual intent visa I have these concerns

- While the I-485 is pending what is my spouse's status. Is his F-1 still valid or is he merely on AOS?
- Does the pending AOS let him be in school or does he HAVE to have an EAD?
- If I loose my job what options does he have? Also, does issuing a new I-20 mean filing for F-1/COS ?

Sorry for the tons of questions. I am just trying to decide if we should file for him or not since I would hate to risk his studies.

Thanks for all your help.
 
Re: more questions

I looked through the archives but didn't find what I needed.
I was looking for some further clarification and would appreciate it if you could point me to some thread or be able to answer.

A little busy now, but will definitely look for that thread and post the link for you.

My concern is if I loose my job and assuming I don't find something by the time an RFE is made what happens to me and my spouse?

If you lose your job and cannot respond to your RFE then your case will be denied. Though there are some loop holes you can exploit, some of which might be unethical. But in case that happens your spouse and you will no longer be adjustee's, and if you want to remain in this country will have to get a new status.

- While the I-485 is pending what is my spouse's status. Is his F-1 still valid or is he merely on AOS?

The moment you apply for AOS, he loses his F1 status and moves to adjustee status.

- Does the pending AOS let him be in school or does he HAVE to have an EAD?

Most definitely he can continue in school, but he cannot work/make money without an EAD.

- If I loose my job what options does he have? Also, does issuing a new I-20 mean filing for F-1/COS ?

He has to go back to the Director of International Students and ask them to reissue an I-20. Once he gets his I-20, he moves over to F1 status and simultanious, you can apply for F2, though I am not sure if you can do that if you are in the country.

Sorry for the tons of questions. I am just trying to decide if we should file for him or not since I would hate to risk his studies.


Hate to give personal advice, but if I were in your shoes, I would go ahead and file for AOS for him. It is not going to hinder his studies in any way. And if you get approved before he is done studying, that will mean more time spent in the INS queue for him to get his GC.

Besides, I wouldn't worry too much about the RFE if you get laid off. There are legal loops holes as explained above, check the 485 portability forum where all they talk about is these loopholes :)

Good luck!
 
pls read my previous post and don't panic

Hi, zipzap,
I was in the same boat as ur spouse. (sounds like ur husband, right?) My suggestion is if ur husband did renew his I-20 before the deadline, Aug 1, 2003, it should be safe for him to keep being a student. He can be RA/TA without any problem. Moreover, he can also stay in "pending" status. I got this information from an immigration lawyer. The only exception is if ur husband didn't have a valid I-20 (e.g., he didn't renew it in time), he still can apply for EAD for working. Certainly, it's better to have either a valid I-20 or EAD at hands for working legally. As duke_in_ca said, if ur husband right now doesn't have a valid I-20, it might be risky for him to reinstate him as an F-1 student. It could be possible for him to lose his AOS status. All in all, based on your info., ur husband is safe now, now matter he is having a valid I-20 or in "pending" status. So, don't panic. Take it easy
 
Thanks!

Hey peaceinheart and 140_takes_4ever,

Thanks for all the input. I should have some some questions I might bother you guys with soon but for now I just wanted to say thanks.
 
140_takes_4ever and peaceinheart

Hey 140_takes_4ever and peaceinheart,

I'm back with some questions.....

Firstly, my spouse did get his I-20 Renewed before the August 1st deadline.
Now what I am cofused about is this.....

- peaceinheart you mentioned he could continue working whule we file for AOS. If he continues to work as RA/TA while we file for AOS (b4 EAD comes through) then he would be working under his F-1 status right? However from what I've read he should have abondened his F-1 status the moment he applies for AOS. Am I right ? If yes then how can he be working without EAD. If not then could you please mind elaborating on what status he would be on while AOS is pending?

- 140_takes_4ever Here is something you had posted which I was unclear about.

"- If I loose my job what options does he have? Also, does issuing a new I-20 mean filing for F-1/COS ?

He has to go back to the Director of International Students and ask them to reissue an I-20. Once he gets his I-20, he moves over to F1 status "

Would he not have problems changing back to F-1 after showing intention to immigrate by filing AOS? Or do I not understand what you mean by reissue I-20 and move to F1 status.

Thanks in advance!
 
zipzap,

First of all this is not a legal advice. INS definition on F1 while AOS is vague according to many lawers, school international officers, and even INS officers. Here is what people in the same boat are doing:

1. keep the F1 status, always in status just like when there is no AOS pending.

2. If do not intend to work more than 20 hours/week, work on F1.

3. If travel abroad, apply and use AP.

4. In case you lose your status, you can change status to F2, as a dependent of your spouse.
 
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