Wife on OPT, needs H4 for I-140/I-485 EAD?

M

msuryadarma

Registered Users (C)
My wife is working on OPT, which expires on July 2004. I am on H1B (until 10/2006) and about we're about to file our I-140/I-485 based on my employer's sponsorship.

In order for my wife to continue working after July 2004, she will need either H1B or another EAD. If she can only get EAD:

1.Since my wife is on OPT, which means she's on F1, does she need to change status to H4 before we apply for I-140/I-485? Or can she change status directly from F1/OPT to AOS?

2. If yes, when should she do that? Before we file I-140/485? This will mean that she will no longer be able to work until her EAD comes, right?

Thanks a lot in advance. :)
 
One can change from F1/OPT to AOS directly. The problem might be if she wants to travel and reenter. If she does not have advance parole, then she might find it very difficult to re-enter on F1. Otherwise no problem.
 
Any documentation?

Raj,

Thanks for your reply. I've had replies from other people, including my company's HR, that said my wife will need to change to H4 first before we can file I-140/I-485. So, could you point me to any laws or documentation where this matter is explicitly explained? Such as in the BCIS website? Thanks so much :).
 
I am definitley sure that you can apply for I-140 when on F1 or F2. Its a little fuzzy when it comes to I-485. It is advantageous to change to H1/H4 when filing I-485, but I stand by my statement that one does not have to change to H4. Once you file I-485, the F2 is automatically gone and the applicant will be in AOS pending status. Try searching for archives on www.murthy.com; look at the instructions for form I-485 available at imigration.gov.
 
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