H4 to F1 transfer - then add to I485 ?!

[ssterian01]

Hi All,

I have I485 pending,
EB3 NON-India or China ,
EAD ,
wife on H4 , not added on 485 (married after filed I485)

If my wife is on H4 visa and I am forced to change employers on EAD, does anyone know if:
1. The process is smooth for language training if I am the sponsor and the school is accredited

2. When my 485 is eventually approved (god knows when !?) can I add her without any problems from F1 to my application, as it wold have been from H4?

Thanks everyone for any piece of information

[devikas81]

I am on the similar situation. can i have your email add..

Thanks,

[prem_goel]

I am kindda in a similar situation. if your wife goes to F1 visa, and the dates become current (i.e you are eligible to apply for 485), you cannot add your wife to your 485 (immigrant AOS) petition on her F1 status. She either will have to come to H-1B/H-4/L-1/L-2 status. I had this conversation long time ago with my lawyer. The reason is that these categories of visas are recognized to have dual intent of migration. F-1, B-1 etc are not so you cannot apply for 485 if you are in any of those category of visas.

This is the biggest thing why you may have to consider being on H-1B only so that she can be on H-4 and you can add her whenever the dates are current for you again. Secondly, being on H-1B has other advantage for you as well. Suppose there is a problem with your 485 application and (god forbid) it gets denied. Then in that case you are not out of status if you have retained your H-1B status. You can be here in US until your H-1B petition expires and fight for a motion-to-reconsider on your 485 and resolve the issue. Had you been on EAD, you are out-of-status the day your 485 gets rejected.

I understand that not many employers are keen on doing H-1B due to the costs involved, but it might be a worthwhile option for you to explain to your employer the benefits associated with keeping an H-1B petition.

[ssterian01]

Thanks a lot, prem_goel.
I will probably have to change emplyers based on EAD and lose my H1B status and she will lose her H4. Before that, I intend to put her into ESL(English as a Second Language) school to get her an F1 visa so she can stay inside US until I get my I485 approved

I read eveywhere and talked briefly to my lawyer about it and he had no objections and didn't raise any red flags so I assumed it would be fine to proceed with F1 plan.
Now I have to give a second thought I guess. I will go to my lawyer and try to get all the answers.

I understand the risks involved with me getting the I485 denied. I heard there are very low. Also, I read that adding F1 to I485 app is allowed and usual procedure, are you sure it might be rejected ? (my wife entered as H4 in the country, then will go on F1). I know there is always a chance to get denied.

How big would the combined risks be to get screwed here (wither 485 denied or F1 spouse not added on I485)? Like very low, low, medium or likely ?

Thanks a bunch

[prem_goel]

Please update your profile so that I and others can help you effectively.

Can you share the link where you read that adding F1 to I-485 application is allowed? I am pretty sure that being on F-1 visa the intent to immigrate is not recognized. (Think about it, we would have all the students applying for Green cards then

You need to share your priority date as well as when you applied for 485. Assuming your 485 has been pre-adjudicated like a lot of people, I would think an RFE would only be triggered if you have any service records update (like address change on 485, I-140 withdrawl etc). Else they'll just wait for your dates to get current and once it is, they'll simply allot you a visa number.

Secondly, please recognize that once you lose your H-1b status, you will not be able to add your wife to 485 through AOS, but she will have to go through Consular Processing (UNLESS YOUR WIFE OBTAINS HER OWN H-1B or L-1).

[ssterian01]

Hi prem_goel, I checked with two lawyers and they both said it is no problem al all to add my wife from F1 to I485 (AOS) when my PD becomes current.
The F1 will provide her legal stay in US and maitain her in status until my PD become current.

There is a lot of info on the internet about this, here is one link that looks relevant

Converting H4 to F1 and then adding to I-485 - Topic Powered by Infopop


About I485 denial, what chances are for this to happen? Does anyone kknow how likely is that your 485 gets denied? I heard is not very likely.

[sundarpn]

Have a similar question. My 485 (EB3-I was filed in July 2007). Yet to be married and have to bring spouse on H-4.

My question is around options to keep my spouse here in case I loose my H1b status.

1. How easy difficult is it to get converted to F-1 visa?. (Does the university / program matter? I guess it would)

2. Can the spouse start the program on H4 then convert to F-1? Can this be done quickly enough after loss of primary's H1 status? (worst case).

3. Other thean F-1, what other options are there if primay looses H1 status (i.e. uses EAD).
thx

[ssterian01]

Quickly, this is what I know so far. If you bring your wife here on H4 and then decide to work on EAD you will have to change her to F1 before you stop your H1B.
This is because she will have to be in status to aply for change of status (H4 to F1). Howeve she will be stuck in US after she will be on F1, because no US Emabassy will not stamp her F1 visa in India or elsewhere is you are in US and have applied for GC
So, no problme if she comes on H4, then switches to F1 (while you are still on H1B) and stays on F1 until your dates get current and you add her on your app. After she gets F1 from H4 though, she has to stay in the US

[acecupid]

Originally Posted by ssterian01

Quickly, this is what I know so far. If you bring your wife here on H4 and then decide to work on EAD you will have to change her to F1 before you stop your H1B.
This is because she will have to be in status to aply for change of status (H4 to F1). Howeve she will be stuck in US after she will be on F1, because no US Emabassy will not stamp her F1 visa in India or elsewhere is you are in US and have applied for GC
So, no problme if she comes on H4, then switches to F1 (while you are still on H1B) and stays on F1 until your dates get current and you add her on your app. After she gets F1 from H4 though, she has to stay in the US

I agree with ssterian01. I read similar views from ron gotcher's forum about this issue. Even if wife is in pure non-immigrant category like F1, it is not a problem to add her to I-485 when dates become current. If you are on H1 and cannot mailtain H1 status for long and I-485 for wife has not been applied then you have little choice but to do a COS to F1 for wife.