Can one file a 485 for spouse on F visa

[Jagan01]

Please move the below to a different thread if necessary.

I had a question regarding applying for I-485.
1. My wife was initially on H4 and changed to F1 (Change of Status)
2. Currently she is on OPT
3. My PD is Jan 2009, and hence there is a chance that PD might be current this FY
4. If my PD becomes current then can I apply for I-485 for myself and I-485 for my wife (It is important to note that my wife would be on F1 visa)

My company lawyer is insisting that she needs to move back to H4 but is not citing any reasons. Any help ?

[mechanical13]

Please move the below to a different thread if necessary.

I had a question regarding applying for I-485.
1. My wife was initially on H4 and changed to F1 (Change of Status)
2. Currently she is on OPT
3. My PD is Jan 2009, and hence there is a chance that PD might be current this FY
4. If my PD becomes current then can I apply for I-485 for myself and I-485 for my wife (It is important to note that my wife would be on F1 visa)

My company lawyer is insisting that she needs to move back to H4 but is not citing any reasons. Any help ?

Hi Jagan01,

I am not a lawyer, but I am inclined to believe that your lawyer may be correct.

While H1/H4 are dual-intent VISAs, the same is not true for the F-1. Once a person has applied for 485, you have expressed intent to immigrate which may be in violation with what the person had had expressed while applying for an F-1 VISA.

Immigration is nuanced, and the reality is that 'intent' can change. In your case, it probably doesn't matter because there will likely be very little overlap between when your wife is in F-1 status (towards the tail end of OPT) and when she gets her EAD/AP. I would recommend against travel outside the country between the time the you apply for 485 and when you receive the EAD/AP. Since she doesn't have a F-1 VISA (you had said CoS), if she ever applies for one in the window between when she has applied for 485 and hasn't got her travel documents, the F-1 will be denied and she will be unable to return to this country.

Hope this helps. As always, consult with other gurus on this forum and another attorney!

Cheers,

[sp2008]

Hi Jagan01,
I tend to agree with logic by mechanical13.
let me quote my Cousin's case.
His wife is on H1 and their dates became current. His H4 expired while he is in India. He did not care to extend H4 due to rejection rates in 2012 time frame.
Instead he entered US with his British passport (Visa waiver program)
Now they wanted to apply for AOS/485.
Attorney refused and asked him to get his H4 stamped come back to USA and then file for 485.

I think this is slightly different scenario but the logic of mechanical is same.

[qesehmk]

Jagan - For a while my wife was on F1/AOS pending status. Filed AOS when she was on F1. Never had any problem.

Please move the below to a different thread if necessary.

I had a question regarding applying for I-485.
1. My wife was initially on H4 and changed to F1 (Change of Status)
2. Currently she is on OPT
3. My PD is Jan 2009, and hence there is a chance that PD might be current this FY
4. If my PD becomes current then can I apply for I-485 for myself and I-485 for my wife (It is important to note that my wife would be on F1 visa)

My company lawyer is insisting that she needs to move back to H4 but is not citing any reasons. Any help ?

[Jagan01]

Jagan - For a while my wife was on F1/AOS pending status. Filed AOS when she was on F1. Never had any problem.

Hi Jagan01,
I tend to agree with logic by mechanical13.
let me quote my Cousin's case.
His wife is on H1 and their dates became current. His H4 expired while he is in India. He did not care to extend H4 due to rejection rates in 2012 time frame.
Instead he entered US with his British passport (Visa waiver program)
Now they wanted to apply for AOS/485.
Attorney refused and asked him to get his H4 stamped come back to USA and then file for 485.

I think this is slightly different scenario but the logic of mechanical is same.

Hi Jagan01,

I am not a lawyer, but I am inclined to believe that your lawyer may be correct.

While H1/H4 are dual-intent VISAs, the same is not true for the F-1. Once a person has applied for 485, you have expressed intent to immigrate which may be in violation with what the person had had expressed while applying for an F-1 VISA.

Immigration is nuanced, and the reality is that 'intent' can change. In your case, it probably doesn't matter because there will likely be very little overlap between when your wife is in F-1 status (towards the tail end of OPT) and when she gets her EAD/AP. I would recommend against travel outside the country between the time the you apply for 485 and when you receive the EAD/AP. Since she doesn't have a F-1 VISA (you had said CoS), if she ever applies for one in the window between when she has applied for 485 and hasn't got her travel documents, the F-1 will be denied and she will be unable to return to this country.

Hope this helps. As always, consult with other gurus on this forum and another attorney!

Cheers,

Thanks for the response Q, sp2008, mechanical,

I am getting different viewpoints from different individuals. I will research further and update. Thanks for the response.

Q,
Were you advised not to have your spouse on F1 when you were applying for I485? Did she come in on H4 and then do COS to F1 ?

[qesehmk]

Q,
Were you advised not to have your spouse on F1 when you were applying for I485? Did she come in on H4 and then do COS to F1 ?

No we were not advised. In fact we were told about the derivative status crap which it turns out was quite wrong based on our discussions yesterday.

She came to US on F2 -> H4 -> F1 (while on F1 filed 485 ) -> F1 expired AOS -> GC

I never bothered to file on H4 after her F1 expired although company was paying for it. I guess I was just plain stupid but luckily never had issues.