Urgent GC Issue

T

tina1979

Registered Users (C)
I am currently on a student visa and have applied for my H1 B in the quota.I have been informed by my employer that my application has been selected in the quota.

Mean while my husband has got his EAD through the employment based green card, and I am eligible to be added to his GC process.

Questions:

1. If my student status gets over in may and my H1b starts in oct 2007 and I have applied for my I-485, can I continue to stay in the US.

2. Can I still apply for AOS I-485 and be eligible for the EAD card.

Please do respond, that should be keeping my H1 B and applying for AOS or should I be going for consular processing.

or should I give up my H1 B and then just apply for H4 and AOS.

Thanks in advance.

Tina
 
1. If my student status gets over in may and my H1b starts in oct 2007 and I have applied for my I-485, can I continue to stay in the US.
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as long as you file I-485 BEFORE your F-1 status expires

2. Can I still apply for AOS I-485 and be eligible for the EAD card.
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yes, you can. However, if I were you, I'd apply for AOS, but not get AOS EAD or AP, and just wait for your H1 status. This way, if something happens to your hubby's GC, you can fall on your own H1.

Please do respond, that should be keeping my H1 B and applying for AOS or should I be going for consular processing.
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keep your H1 and have your AOS running concurrently. Work on your H1 for your H1 employer.
 
Your H-1B process and your derivative GC (because of your husband) can go in parallel. As soon as you have a pending I-485, you are "in status". Also, a pending I-485 will make you eligible to apply for an EAD.
 
I was just thinking how she would change her status from AOS to H1 when time comes.... She will no longer be in F-1.
 
That is a potential show stopper, I agree. The OP can do F-1 --> H-1B ---> AOS. However she has the problem of 4 months without status. In my view, the OP needs to bank on her husband's AOS going through problem free.
 
Explain in detail as to what problem may arise

I was just thinking how she would change her status from AOS to H1 when time comes.... She will no longer be in F-1.

What do you mean by this LucyMO..? Can you please clarify
 
Triple Citizen,

That is a potential show stopper, I agree. The OP can do F-1 --> H-1B ---> AOS. However she has the problem of 4 months without status. In my view, the OP needs to bank on her husband's AOS going through problem free.

What would be a show stopper if you could please explain and if any suggestions of working around it. Should I give up my H1b application and rather stick with H4 and I-485 is that what you suggest..?
 
Tina,
There are two avenues.
(1) F-1--->H-1B-->AOS
(2) F-1-->AOS

Option (1) allows you a little more freedom. In case the AOS is denied for some reason, you will fall back on your H-1B. However since your F-1 expires in May and you will get H-1B status in October only, you will accrue illegal presence. That may hinder COS to H-1B.
Option (2) should work 99% of the time. The downside is, if AOS is denied, you fall out of status and need to depart the US.

You may consider F-1-->B-2-->H-1B-->AOS. Just before your F-1 expires, you can consider sending an I-539 with a COS request to B-2. One reason could be "Want to see the US". It is possible that its adjudication might take longer than 4 months and by that time you may have your H-1B. Then you can AOS and have H-1B to fall back on.
 
Triple Citizen,

For any reason if my AOS is denied and as you said I shall be out of status for those four months, in that case can I not apply for my H4 visa to maintain my status based on my husbands H1b. As he is not using his EAD to work but is still holding his H1 B.

Thanks in advance

Tina
 
If he is still in valid H-1B status, then yes you have the H-4 option. I just thought you were really keen to work come October. You can still consider F-1-->H-4-->H-1B-->AOS.
 
Yes I would like to work from October, but at the same time what to make sure that I am not out of status or violating an rules at any point of time during my process.

So now how should I go about with my case. Should I right now just keep my H1 B application and then apply for I-485 , AOS and thus under pending I-485 I am legal to stay for these four months. Incase AOS is denied then at that point of time, should I apply for H4.

How should I instruct the lawyer at my husbands firm, as they have asked us to think about what we would like to do and get back to them.

Thank you very much I really appreciate your help.

Tina
 
If you have a lawyer, do you really need a novice's opinion? :)
All my previous posts have explored different avenues you may take. You make the call that suits you best. Run all of these scenarios with your lawyer and take it from there.
Good luck!!!
 
No your opinion does really count, it helped me explore my options very well, as I was completely confused with what the lawyer adviced me.

I have one last question. I shall keep my H1B and applying for I-485 in parallel, which will allow me to stay in US. For any reason the AOS is denied, can I apply for an H4 at that point when AOS is denied, or should I file it now itself.

Thanks !!!!
 
I'd just file the AOS, and not worry about the H-4/H-1. At a later date you can re-enter the US with the H-1 if you prefer. I-485 denials are quite rare, and unless you have a specific reason as to why you feel your husband's adjustment will be denied, I wouldn't worry too much about it. Just having the H-1 petition is all the fallback you need.
 
tina1979 said:
Incase AOS is denied then at that point of time, should I apply for H4.
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Out of interest, on what basis would you apply for H-4? I assume your husband is on a H-1B? If his AOS is approved, that H-1B becomes invalid and you would no longer qualify for an H-4.
 
My husband does not have his I-485 approved, he has his I-485 filed and hold an EAD. Thus I can be eligible for an H4 if required.
 
tina1979 said:
My husband does not have his I-485 approved, he has his I-485 filed and hold an EAD. Thus I can be eligible for an H4 if required.
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If he's used that EAD though, you wouldn't be eligible for an H-4 because using an EAD invalidates H-1B.
 
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