Prepare to file I485

AFAIK there is no requirement for a dependent to be necessarily on a dependent visa (H4). Dependent can be legally in the country on their own visa. In my case my wife was on H1B when we applied. She shifted on EAD after we got it in 2012. So I believe you can go forward with 485 filing with her on F1.

OTOH - F1 is a Non-Intent visa - that is - you have to show that you do not intend to immigrate (as opposed to H1B where intent is fine). That might be the reason why the first attorney might have suggested changing to H4. Prudent thing to do would be to go ahead with 485 filing with her on F1 - but not do things like visa renewal or overseas travel until you have EAD/AP in hand.

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Originally Posted by Jagan01

Hi Gurus,

I have asked this earlier but had an update to share. Please let me know your inputs.

My company's law firm is one of the biggest in the area. My case was with one attorney under that firm and he mentioned that when my date becomes current, my wife will have to switch from F1 to H4 before filling I-485. Few months have gone by and that attorney left the law firm and my case was handed to a new attorney at the same law firm. The new attorney says that it is fine to file for my wife's I-485 while she is on F1. My wife is currently on OPT and I am confused about the process ahead. Have received two contradicting views from two attorneys at the same law firm.

What are your opinion on this. My wife is currently on OPT which expires in Jan 2015. We wud most likely have my EAD by then (PD Jan 2009) if we get to apply this FY. Let me know ur opinions.

I would also like to know if any one of you have had consultation with lawyers. I am looking for some good references so that I can discuss my situation with those lawyers.

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Jagan

Adjustment of status is just that. Adjust of Status.

It can adjust from any non-immigrant status into an immigrant one.

The first lawyer was either wrong or greedy.

Quote:

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Originally Posted by Jagan01

Hi Gurus,

I have asked this earlier but had an update to share. Please let me know your inputs.

My company's law firm is one of the biggest in the area. My case was with one attorney under that firm and he mentioned that when my date becomes current, my wife will have to switch from F1 to H4 before filling I-485. Few months have gone by and that attorney left the law firm and my case was handed to a new attorney at the same law firm. The new attorney says that it is fine to file for my wife's I-485 while she is on F1. My wife is currently on OPT and I am confused about the process ahead. Have received two contradicting views from two attorneys at the same law firm.

What are your opinion on this. My wife is currently on OPT which expires in Jan 2015. We wud most likely have my EAD by then (PD Jan 2009) if we get to apply this FY. Let me know ur opinions.

I would also like to know if any one of you have had consultation with lawyers. I am looking for some good references so that I can discuss my situation with those lawyers.

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Quote:

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Originally Posted by Jagan01

Hi Gurus,

I have asked this earlier but had an update to share. Please let me know your inputs.

My company's law firm is one of the biggest in the area. My case was with one attorney under that firm and he mentioned that when my date becomes current, my wife will have to switch from F1 to H4 before filling I-485. Few months have gone by and that attorney left the law firm and my case was handed to a new attorney at the same law firm. The new attorney says that it is fine to file for my wife's I-485 while she is on F1. My wife is currently on OPT and I am confused about the process ahead. Have received two contradicting views from two attorneys at the same law firm.

What are your opinion on this. My wife is currently on OPT which expires in Jan 2015. We wud most likely have my EAD by then (PD Jan 2009) if we get to apply this FY. Let me know ur opinions.

I would also like to know if any one of you have had consultation with lawyers. I am looking for some good references so that I can discuss my situation with those lawyers.

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I would agree with imdeng and Q.

Being in F-1 status is not a bar to filing an I-485.

However, once she has done so, she has demonstrated immigrant intent and there is the possibility of difficulties in renewing the F-1 visa at the consulate.

It's clear even lawyers cannot agree.

Spec

My wife got her F1 stamped in India when our GC was already filed. That time she also held an H4 which is a dual intent one.

So I guess the cliche of showing immigrant intent is harmful for obtaining non-immigrant visa is only true for first time visa application.

If somebody has gotten multiple visas (even if never a dual intent one) then having shown immigration intent is not quite harmful.

What do you think?

p.s. - Just to expand that a bit further.... one has to look at the genesis of this philosophy. Americans don't like the idea of supporting immigrants on government money. As a matter of fact they don't like supporting anybody on govt. money. So when somebody is trying to come to US first time on a non-immigrant visa with immigration intent then obviously it is a red flag because many times a person in US even on non immigrant visa has many more rights that s/he may not enjoy even in his/her home country.

Now if one already had that opportunity to come here and suck the blood out of the system (and trust me I have personally seen such suckers) and then not done that, then there is a good chance that the person is genuinely asking for non-immigrant visa. I think that's what the state dept thinks and so the second time they are super easy to grant a visa.

Talking about my own experience - I always had a very nice weather related conversation with visa officers in mumbai - although I just hated the whole experience which was absolutely humiliating. But some of that is good old India. Sometimes I think Americans on their first trip to India must be appalled how undignified treatment Indians give to each other.

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Originally Posted by Spectator

I would agree with imdeng and Q.

Being in F-1 status is not a bar to filing an I-485.

However, once she has done so, she has demonstrated immigrant intent and is unlikely to be granted another F-1 visa at the consulate.

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I totally agree that is how it should be i.e. taking the totality of the circumstances into account. If someone is already living there and could do so in another visa class, it's totally absurd to deny one type of visa over another.

I'm pretty sure I have seen posts where even lawyers have raised concerns. That involves memory, which might not be so reliable these days. :)

Possibly it comes down to interpretation by individual Consular Officers (which is an uncertain thing), who seem to have a wide range of latitude and opinions. The law seems to be written deliberately vague, so it may well be a lawyer interpretation issue as well.

I'm certainly glad to hear that it can be done.

I have no direct experience, so I think it is better to defer to your own personal experiences.

I would still say that I would not attempt to renew an F-1 visa, having filed an I-485, without having the backup of another visa class or Advance Parole with which to return to the USA.

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Originally Posted by Spectator

I would still say that I would not attempt to renew an F-1 visa, having filed an I-485, without having the backup of another visa class or Advance Parole with which to return to the USA.

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I think that's a good bottomline of this conversation!

Q, Spec and imdeng,

Thanks a lot for your replies. I feel so relaxed. I got different opinion form diff lawyers but when the advice comes from people like you at this forum then it is very assuring. Thanks again. It means a lot.

I will go ahead and file the I-485 for my wife while she is on F1 status.