Spouse 485 filing while on F1

J

jsn_lee

Registered Users (C)
I got my I-140 approved..and I-485 pending...
My wife is on F1... I am ready to send in her I-485 package (including EAD/AP) as a beneficiary... Can anyone answer my question...( I have previosuly read some of the post regarding the same issue..but they have confused me instead of answering my question)..please help...

Can she continue to use her F1 status and get paid as RA...if she does not use EAD or AP. My understanding is that since she is not a principal applicant she can continue to maintain her F1 status while AOS is pending... any suggestions..

thank you...
 
I would beg to differ on this.

F1 Status is purely non-immigrant intent status. Filling I-485 shows that the person has immigrant intent. A person cannot stay on a non-immigrant intent status when he/she shows that he/she has immigrant intent.

As soon as you file her 485, her F1 status will be invalidated, even if she doesn't use EAD or AP.

Only H1 and L1 status holder can be on H1 and L1 even when their 485 is pending because H and L, unlike F, B, J, etc visas, has immigrant intent.

Since she won't be on F1 status, she won't be able to enjoy any benefits of being in F1 status like clamming medicare and social security on tax returns or so on.

I don't understand why she can't get paid as RA? RA stands for Research Assistant, right? So she can still work as an RA (on her EAD) and get paid. She will be considered as state resident for her tutions too. I am pretty sure that state residents are qualified to get a RA assistantship.

My only concern is that she might not be able to work from the time her 485 is filled till the time her EAD (or I-EAD) is approved.

Please correct me if I am wrong.
 
Very good point made by Guju.

It is true that an F1 status is gone as soon as you apply for an AOS(primary or derivative).

However, i am in the exact same situation with a pending AOS and a F1 (I-94 says D/S). My school has no qualms about giving me campus employment - when i discussed this with the counsellor. So a a little confused as well.
 
If she continues employment after the GC is filed without obtaining EAD she will have been illegally employed. This will prevent AOS unless she is eligible for 245i or the Service overlooks the problem.
 
Hi,

I am also in the same boat - my husband is on F-1, but he discussed this with Office of International programs and they said it is okay until he doesn't leave the country and come back on AP.

What did the University say? Double check with them and bring up what attorney says to them and see how they are reacting.
Generally the university doesn't take chances - they don't lose anything by not paying someone. But inspite of that, most universities say that F1 is valid until the student uses AP/EAD.

This is very confusing!!!
 
I know my university's international consular was a dum a$$ and so was my friend's university's internation consular.

Please don't go entirely by their words. I am pretty sure you loose your F1 status when you file your I-485 and you will need EAD to continue working.

Doesn't matter if you do not use Ap/EAD. As soon as you file your 485, you loose your F1 status. Attorney Jim Mills also agrees on this, and I think immigration lawyers know more than some internation consular.

Please make sure you are not violating your legal status by working without EAD, because this may result in problems for your 485 adjudication unless you are lucky and the service center overlooks it.
 
I am currently an F-1 student and filed I-485 in September 2003 after the approval of my NIW case. But I got paid for September and October as RA without EAD. Is there anything I can do to correct this so that I won't jeopardize my I-485?? Say refund the pay?

Thanks,
 
Well... my immigration lawyer said that if one has valid F1 and applies for AOS...one can continue to study and get paid as RA/TA... but one looses the priviledge of getting any extension to the current F1 status and also one cannot re-enter the country on f1 status...I mean one has to use AP for that purpose...but as long as one is in the US with a valid F1 ...one doesn't need to use EAD to work...

...jsn
 
So, I am safe :) ? Also my OPT in Nov. was approved recently - do not you think this is a validation of F1 status?

Thanks,

Originally posted by jsn_lee
Well... my immigration lawyer said that if one has valid F1 and applies for AOS...one can continue to study and get paid as RA/TA... but one looses the priviledge of getting any extension to the current F1 status and also one cannot re-enter the country on f1 status...I mean one has to use AP for that purpose...but as long as one is in the US with a valid F1 ...one doesn't need to use EAD to work...

...jsn
Click to expand...
 
I believe your OPT remains valid after the AOS filing, but you can kiss any renewals goodbye. You also cannot re-enter the US without AP, and if you did re-enter with AP you will need an EAD to continue working.

So in the short term, you should be OK.
 
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