What's safer: F1->AOS or F1->H4->AOS?

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nobody10

Registered Users (C)
Hi,

I'm sort of in a weird situation. I'm currently on H1-B and my I-485 is most likely going to get approved around Feb-Mar of 07. I'm thinking of soon getting married to a girl who'll be in the US on F1 from this month and I would like to get her in on my I-485 app too before it gets approved. I've confirmed that this can be done, but I'm fast running out of time. So my question is which one's safer?

Option 1: I can directly apply for her while she's in the country on F1? But since F1 carries a no-stay intent, will that have a negative impact on the application? And if her AOS app gets rejected (not sure if mine will be affected too), will her F1 status be in jeopardy?

Option 2: The other option is change her status to H4 by going to a US consulate in Canada and then apply for her AOS. But this is somewhat complicated and carries some risk too. What if my I-485 gets approved between the time she gets he H4 and before she can apply for her AOS. Then she has to revert back to F1 and that might be another issue. There are also some other issues like she can't work in school and so on as an H4.

Can someone shed some light on this matter? Does anyone have any personal experience with applying for the AOS (as a dependent of their spouse) while on F-1? Is it risky? Any input will be appreciated. Thanks!
 
My wife was initially on H4. Since she got a R.A. @ the university she switched to F1 while being in the USA. She never left USA after switching to F1.

I explained my situation very clearly to my lawyer( They are a very reputable immigration law firm) before swithching to F1 and they Okayed it.

Now we have just applied for the AOS. So I can't tell you the end result but I am keeping my finger crossed.
 
When does your would-be wife's F1 expire? If she is going to be actively enrolled in school till your 485 get's approved, no need to change to H4. You can apply for dependent status for her on your 485 (of course, with the necessary ammendment paperwork) mentioning that she is on F1 currently.

I had filed 485 for my wife (along with mine) when she was in school on F1 visa. No problems as such with her moving to GC from F1, except that my I-140 itself was rejected and she went out of status immediately as she graduated while my I-140 was being processed.

She has to go to India within a couple of months, wait there for 4 months to get an appointment at an US consulate and then come back on H4 visa (thank God that I had a valid H1B visa, rather than working on EAD. Otherwise, even I would have had to leave). After that I have refiled I-140 and I-485 for both of us. We got 485 approvals for both of us recently.

The crucial point here is to maintain some sort of non-immigrant visa (H1/4 or F1 - it doesn't matter) till 485 gets approved, for both you and your wife. According to the law, it seems, you can change your status from one non-immigrant visa to another or from non-immigrant to immigrant visa (GC) without leaving the country. But once you are on an immigrant visa (AOS, or using EAD etc. are considered immigrant visa status), you cannot go back to a non-immigrant visa without appearing in from of an immigration officer at a US consulate outside US. Most likely, you'd have to go to a US consulate in your home country.

If she is going to finish school some time soon, file the 485 for her as a dependent before her F1 expires. Of course, you need to get married to her before that :)

Then if she finishes school before your 485 gets approved, file her H4 petition before her F1 expires (and mention in the forms that you have filed for an immigrant visa). My wife did not get into any trouble at the US consulate when she applied for H4, because of the fact that we had applied for 485 for her before.

Good Luck.
 
chravi said:
But once you are on an immigrant visa (AOS, or using EAD etc. are considered immigrant visa status), you cannot go back to a non-immigrant visa without appearing in from of an immigration officer at a US consulate outside US. Most likely, you'd have to go to a US consulate in your home country.
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Adjustee/using EAD are NOT considered immigrant status - they are a curious limbo status that is not non-immigrant status, nor is it permanent residency. I just want to make that distinction clear, but other than that you are spot on.

Maintaining valid non-immigrant status can be helpful in situations where you may be unsure about your I-140 being approved, or you wish to marry and your spouse is not yet in the US. However, there are other situations where the expense and hassle of maintaining L or (especially) H is simply not worth it. One needs to evaluate their specific situation and appetite for risk.
 
TheRealCanadian said:
Adjustee/using EAD are NOT considered immigrant status - they are a curious limbo status that is not non-immigrant status, nor is it permanent residency. I just want to make that distinction clear, but other than that you are spot on.

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Well... I did not read the actual law but that's what a well known lawyer's office <<I am not sure if it is against the forum rules to mention any names, so deleting the firm's name>> said about my wife's status. They said she cannot apply for an H4 status while she is in the US and that she has to go out of the country to get the H4 visa, which is exactly what she did. The reason they gave me why she couldn't apply for H4 without leaving is that being on I-485 status, though as a dependent, was considered an immigrant visa status.
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Maintaining valid non-immigrant status can be helpful in situations where you may be unsure about your I-140 being approved, or you wish to marry and your spouse is not yet in the US. However, there are other situations where the expense and hassle of maintaining L or (especially) H is simply not worth it. One needs to evaluate their specific situation and appetite for risk.

*********
If the primary H1B holder has a valid visa but H4 is getting expired, I would rather spend the $200 on H4 extension than getting AP etc., of course, except in situations where the spouse wants to work with the EAD.
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Is there any problem in changing the status from F1 to H4? If a couple are maintaining H1 status separately and one of them loses job, then immediately he/she can go to dependent status. People even went to B1 status (of course, you can get only max of 6 months in this) and reverted to H1 (subject to cap).

I agree with you saying that as long as one maintain a non-immigrant status , he/she is one the right side. I wonder why your law firm asked her to go to India and come back with an H4 stamp. She could have changed status while in the country itself.
 
June1506 said:
Is there any problem in changing the status from F1 to H4?

*** I don't think so.

I wonder why your law firm asked her to go to India and come back with an H4 stamp. She could have changed status while in the country itself.

*** As I mentioned in my previous post, the reasoning given by the law firm was that one cannot change from an immigrant visa to a non-immigrant visa while being within the country and that being on AOS is considered an immigrant visa where as F1/H4 etc. are non-immigrant visas.
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Thanks for all the info. My fiancee has a few years left on her F1 so that shouldn't be a problem I believe. My only concern is the possibility of her AOS app getting rejected for an reason. In that case I hope her F1 will remain intact and won't become invalid.
 
I don't think a rejection on 485 or 140 has any effect on your regular valid visa like F1 and H1. Otherwise, I should have been out of this country for quite a while now.
 
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