H1B petition based-on I-485 EAD

[Kobe_vem]

Hi All,

My wife came to USA on H-4 status and when my I-485 date became current she was able to get an EAD and is using that to work in USA although we don't have a GC yet.

 

Right now we are in the process of getting divorced and she is trying to delay the case to get a GC through marriage but since it is clear that we won't get a GC this year she has now provided information about her H1B visa which is currently under premium processing.

 

My question are the following:

If we get divorced before her H1B visa application is approved or denied then does she have any grace period to stay in the US and convert to F-1 visa?

If we get divorced before the start date of H1B (October 1st) but her H1B is already approved then can she continue to stay in the US until October 1st after our divorce? If not in how many days after we get divorced should she leave the country?

 

Thanks in advance for your replies. I'm really frustrated that it has been almost an year since I filed for divorce and her immigration status is the only thing that is delaying the case especially considering the fact that we have no children.

 

 

[JoeF]

Since she has shown immigration intent by filing an I-485, she won't be able to get an F1.

[pingpong]

Hi,

 

    I really feel sorry for your situation. Just like in India Woman are covered with special privileges in USA. Based on why you folks are getting divorced immigration system allows protective net to woman going through rough situation/s. I would advice you (if the divorce is amicable with your spouse) to consult an immigration lawyer

[Kobe_vem]

Since she has shown immigration intent by filing an I-485, she won't be able to get an F1.

True but if she had admission in an university then she can always convert to F-1 based on her I-20 right?Why will filing I-485 deny her a chance to get F-1??

[Kobe_vem]

Hi,

 

    I really feel sorry for your situation. Just like in India Woman are covered with special privileges in USA. Based on why you folks are getting divorced immigration system allows protective net to woman going through rough situation/s. I would advice you (if the divorce is amicable with your spouse) to consult an immigration lawyer

 She is not going through any tough situations but in fact is happily working and wants to delay the case to get a GC. She could have easily applied for an admission to an university,get an I-20 and then convert to F-1 which she didn't do.

[livliv]

I think this is a question for an experienced immigration attorney. But below is my opinion.

Important thing to understand is, what is your status. Are you in H1B and H4 status or are both of you using EAD and hence in parolee status? It is possible that H4 status will become invalid after divorce, but parolee status will remain valid.

In the worst case, all she needs to do is leave the US and return with her H1B Visa and petition.

[JoeF]

True but if she had admission in an university then she can always convert to F-1 based on her I-20 right?Why will filing I-485 deny her a chance to get F-1??

If she has filed an I-485, she has shown immigration intent and won't be able to get an F1. The I-20 doesn't help any.

[livliv]

True but if she had admission in an university then she can always convert to F-1 based on her I-20 right?Why will filing I-485 deny her a chance to get F-1??

 

Because F1 Visa requires that there is no immigrant intent. By filing I-485, she has shown that she has immigrant intent. Having admission in a university does not guarantee F1 Visa or status.