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

[msuryadarma]

My wife is working on OPT, which expires on July 2004. I am on H1B (until 10/2006) and 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.

 

[jaxen]

1. No, she need to be on H4 before applying for I485. The problem is that F1 are pure non immigrant visas and it is implicit that they cannot get GCs, however H visa holders are allowed to have immigration intent.

2. Yes, Yes.

 

[msuryadarma]

Jaxen, thanks for the reply.

Are you positive about this? Because I've heard that there can be no immigration intent when she first filed for F-1 visa, but things change, and there would be no problem for her to directly file I-485 together with me without transferring to H-4 first.

Anyone else know about this situation or have experienced such thing?

Thanks!