what status to go back to school with I485 pending

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kentclark

Registered Users (C)
My wife is currently holding H-1 work permission and planning to go back to graduate school this fall. Since our I485 applications are still pending and have been transferred to local office, what kind of status she could use to attend school? Does F-1 has confliction with pending I485? Could she use EAD in school? Your answers and oppions are highly appreciated. Thanks.

Clark
 
Originally posted by kentclark
Since our I485 applications are still pending and have been transferred to local office, what kind of status she could use to attend school? Does F-1 has confliction with pending I485? Could she use EAD in school?
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Since an F-1 requires non-immigrant intent and a residence abroad, a COS to F-1 will get approved just after Hell freezes over. There's no way.

Second, an EAD is required to work, not go to school.

Her adjustee status should be sufficient. She will need to make sure that she has AP in order to-renter the US once she leaves her H-1 employer.
 
Thanks, TheRealCanadian.

So that means she doesn't need to change any status at all. Just quit the job and register at school as a graduate student. It sounds too good to be true. If she doesn't plan to leave the States, she doesn't need AP or might apply for one later since our application is independent one, not through employer. Maybe what you suggested is based on sponsered applications.

Actually I just hang off with INS officer and was told basically same as you said except the last statment of ajustee status. The first officer couldn't answer my question and transferred my phone call to another one. Then I was told that switching to F-1 will automatically invalidate her pending I485 application and EAD is only good for work, not for schooling. She said the only way is to wait till the final approval of I485. That dissapointed us since my wife really doesn't want to wait, but no one knows when the local office will schedule the interview. (I was told it is up to 12 months)

A couple days ago, my wife recieved an email from international office of the univeristy and asked for an foreign address which is required for F-1 application. They know we are applying for green card and I485 is pending. Seems they don't know or at least didn't mention that the way of adjustee status could work. We need to let them being aware of this option.

At the same time, I am calling the attorney office which has contract with our company and see what they say.

BTW, I am the primary applicant and my wife is the benificiary. Things changing like this should not affect our pending case, right? Should I inform local office about this? Since we have to go through an interview later, does this hurt?

Thanks again.
 
Originally posted by kentclark
... she doesn't need AP or might apply for one later since our application is independent one, not through employer. Maybe what you suggested is based on sponsered applications.
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The information I've given you isn't specific to EB or FB adjustments. If you have filed an adjustment and are not re-entering on H1/H2/H3/H4 or L1/L2 status, you'll need AP to re-enter. It takes 30-90 days to get in most cases from a District Office, so please file in enough time that you have the paper in hand when you leave the US.

Then I was told that switching to F-1 will automatically invalidate her pending I485 application and EAD is only good for work, not for schooling. She said the only way is to wait till the final approval of I485.
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Free information from BCIS is worth every penny you paid for it. (Mind you, so is info from an Internet discussion board.) If you were to ask a dozen BCIS officers your question, you'd get six different answers (and six "Don't know"s).

Filing a COS will not invalidate the I-485, for the simple reason that the F-1 COS will *never* get approved, because of your wife's obvious immigrant intent. Even the dumbest, overstressed overtired and coffee deprived adjudicator will notice that, and your wife will have wasted $120 for the dubious priviledge of seeing what a BCIS denial notice looks like.

Your wife doesn't need to wait. She can legally go to school as an adjustee.

Seems they don't know or at least didn't mention that the way of adjustee status could work. We need to let them being aware of this option.
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You betcha! As an adjustee, your wife is allowed to live in the States indefinitely, and would probably qualify for in-state tuition, especially if you are paying state taxes. Don't let the school push you down the F-1 road. That road don't lead nowhere.

BTW, I am the primary applicant and my wife is the benificiary. Things changing like this should not affect our pending case, right? Should I inform local office about this? Since we have to go through an interview later, does this hurt?
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The local office couldn't care less what your wife is up to, so long as she's not working without authorization, committing a crime to make her excludable, or getting a communicable disease that would make her excludable.

Good luck. BTW, where's your interview?
 
kentclark,

if your are a primary applicant and your wife is the benificiary, your wife can go to school without doing any thing. Don't have your wife apply for F1 because it will revoke her 485 application. AOS status allows her to go to school and work(if she has EAD card). Going to school will revoke her H-1 as well, but keep AOS. my wife had the same scenario like that, and she only inform BCIS about that by a call for address change. now we just got approval without any trouble.

Good luck

BTW, what school is so good so that your wife can not wait for longer?
 
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Thanks for your replies.

I filed my I485 to VSC in Dec. 2001 when I was in MA and moved to NC after a few month. Our cases were transferred to Charlotte in May 2003.

Since I moved here, I started using EAD to work with my current employer. By the time the EAD needed to be renewed, the attoney office who has contract with our company told me that we mightn't have enough time to get the renewed EAD before the current one expired. So they suggested our company to file an H1-B application at the same time since my previous one (I got through my previouse employer in MA) were still valid at that time. But actually I got my renewed EAD just in two month and my H1-B application is still pending. That might be a good footnote to what you said that COS will "never" get approved and won't lead us nowhere.

The reason that I say she doen't want to wait is the timing. If we wait till the final approval, it might take a few months, a year or longer. She doesn't want to graduate with grey hair :-) The school is just so so, UNC.

Do you guys know where I could find the legal discription about the adjustee status? We could use that information to convince the University and let my wife register with the adjustee status, even pay in-State tuition since we do pay state tax.
 
Since I am preparing the documents for my wife's EAD application and our address change form. I have another three questions here.

1. What's our legal status now?

I am the primary applicant and working with EAD. My wife is working with H1-B. So are we both the I485 pending adjustees?

2. The last question in AR11: "My stay in the U.S. expires on:"

My wife has a I94 card coming with the notice of H1-B approval letter, which says I94 valid until Aug, 2005.
My EAD will expire in Jan, 2004.

Are those the dates I should fill in AR11?

3. Since my wife had an EAD before based on her practical training, it was used for a year. Then her employer applied H1B for her and she is working with H1B now. So this time she appies for EAD based on her pending I485, is this application a renewal one or a totally new one? It is asked in the beginning of I765 form.

Thank you very much.
 
Originally posted by kentclark
1. What's our legal status now? I am the primary applicant and working with EAD. My wife is working with H1-B. So are we both the I485 pending adjustees?
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You are an adjustee. Your wife is (probabaly) H-1B. Did your wife leave the country and re-enter on her H-1B or was there a COS granted? You might just say adjustee to keep things simple. (Ah, notice farther down there was an I-94 on the approval. Your wife is H-1B).

2. The last question in AR11: "My stay in the U.S. expires on:" Are those the dates I should fill in AR11?
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You're adjustees. You can stay indefinitely until the I-485 is ajudicated. Just put N/A. If Charlotte BCIS has an issue they'll let you know.

So this time she appies for EAD based on her pending I485, is this application a renewal one or a totally new one? It is asked in the beginning of I765 form. Thank you very much.
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Since this is her first time applying for an EAD based on (c)(9) eligibility (beneficiary of a filed I-485) I'd say it's an initial one, since she's not renewing the OPT-based EAD.
 
kentclark,

see my answer below your question.

1. What's our legal status now?
I am the primary applicant and working with EAD. My wife is working with H1-B. So are we both the I485 pending adjustees?

you are COS, your wife is H-1 and will become COS automatically if she goes to school


2. The last question in AR11: "My stay in the U.S. expires on:"

My wife has a I94 card coming with the notice of H1-B approval letter, which says I94 valid until Aug, 2005.
My EAD will expire in Jan, 2004.

your expired date is "pending on COS application process". your wife's is Aug. 2005 now and becomes as yours if she is in school.

Are those the dates I should fill in AR11?

see above answer.

3. Since my wife had an EAD before based on her practical training, it was used for a year. Then her employer applied H1B for her and she is working with H1B now. So this time she appies for EAD based on her pending I485, is this application a renewal one or a totally new one? It is asked in the beginning of I765 form.

at first she was F-1 working with EAD, than H-1. getting EAD does not change her H-1 status except she tells her employer she works under EAD on her working authorized process, a form filled by your wife and signed by employer representative.

if your wife goes to school without applying I-20, school doesn't care your wife status. search below website for more detail

http://www.immigration.gov/graphics/lawsregs/index.htm

use your last year tax return form and the evidence of current in-state address to get in-state tuition
 
Thank you so much, TheRealCanadian and Dear_Frank.

A few minutes ago My wife called the univeristy with the information we learned here and it was confirmed that she can regestered with adjustee status and work as TA/RA with EAD. What we need to do now is to send in the EAD application asap.

Thanks again.
 
Guys,

Do you know if a primary applicant can go to school (full time) if the 1-485 is pending and if thecompany is willing to put that person on leave of absense.

Thanks
 
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