配偶I-140/I-485过程中I-485副申请人的F1/OPT/H1b选择问题# Immigration - 落地生根
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当配偶在file I-140/I-485过程中，副申请人正面临毕业。根据在版上版下学习，总结
如下，不知是否准确。请高人点评（最好逐行。。。）
谢谢。
A B 为夫妻
--A currently in the U.S. H1b w/o visa, A 在准备Eb1 I-140申请
can apply for H1b visa as usual, regardless of I-140/I-485
can use I-485 AP leave/return U.S. w/o H1b visa
can not apply for F1 after either I-140/I-485 filing
--B currently in the U.S. F1 w/ F1 visa(visa expiring summer 2012, I-20
expiring May 2012, graduation May 2012)
准备作为I-485副申请人
everything as usual before I-485 filing(the first instance that involves B,
only disclose that husband is in H1b.)
can OPT only before I-485 filing (OPT has to be processed before I-485 is processed)
can continue study/RA in current F1 status in current I-20 after filing I-
485
can leave/return US w/ existing F1 visa BEFORE I-485 filing
If no OPT, can only work after graduation w/ I-485 EAD.
can apply/work w/ H1b EAD regardless of I-485 status
If got OPT, can work w/ OPT EAD or I-485 EAD, after I-485 filing
cannot enter U.S. w/ F1 visa after I-485 filing (invalidates I-485)
cannot extend I-20 / apply for F1 again after I-485 filing
cannot apply for J visa after I-485 filing
===参考资料：
http://www.hooyou.com/f-1/140filing.htm
“a) Travel Abroad: If he/she travels abroad without the benefit of an
advance parole, there will be two likely consequences: (1) the individual
will be deemed to have abandoned his/her application for permanent residence
(I-485); and (2) the individual will have a very hard time to get F-1 visa
and probably not be permitted to enter the United States as an F student
because he/she has demonstrated "immigrant intent" by virtue of filing an I-
140 petition.
b) Applying OPT: The F-1 individual who has applied for immigrant status may
apply for F-1 OPT and usually should get OPT. However, the filing of the I-
140 and/or I-485 may make him/her ineligible to receive the F-1 OPT/EAD if
the school becomes aware that he/she filed the I-140 and/or I-485. Even if
his/her OPT/EAD application is denied, he/she would not lose his/her F-1
status so long as he/she continues to take a full time level of course work
since there is no triggering event for the USCIS to invalidate the F-1
status as a matter of practices.
c) Maintaining F-1 status: The filing of I-140 / I-485 places this
individual in a gray area with regard to his/her underlying status in the
United States . If the F-1 student remains in the United States and
continues his/her full time studies and does not travel abroad, does not
apply for a new F-1 visa abroad, and/or does not seek to extend or transfer
the Form I-20 (Certificate for Eligibility for Student Status), he/she
should be fine because there is normally no circumstance where he/she would
be asked about the disclosure of filing the I-140 and/or I-485. If, however,
in the unlikely situations that the school/consular officer does ask the
individual whether he/she filed an I-140 and/or I-485, he/she will have to
disclose that fact. If this happens, it is highly unlikely that he/she will
be able to obtain an EAD based on OPT or extend or transfer the Form I-20.
d) Applying H-1: The application of I-140 / I-485 will not affect in any way
, the F-1 student's application of H-1 since the H-1 allows a dual intent
and there is no need to disclose about the filing of I-140 or I-485 unless
the I-140 was sponsored by the H-1B employer. Generally, there should not be
a detrimental consequence if the I-140 Principal who is in F-1 status files
a Form I-129 Nonimmigrant Petition to change his/her status to H-1B. In
addition, there should not be a detrimental consequence to the I-140
Derivative Spouse and he/she can request to change to H-1B or H-4 status.
Moreover, there is no detrimental consequence to the I-140 Derivative Spouse
when changing to F-1 because the I-140 petition is not his/her petition and
therefore he/she would not have immigrant intent.
e) Applying I-485 and EAD: If the F-1 student will not be able to get OPT or
H-1 because of lack of sponsorship from an employer without working for the
employer first as a matter of practical reasons, then he or she, if
eligible, should apply for the I-485 (including any nonimmigrant dependents)
with the I-140 in order to obtain the EAD so that the F-1 may work upon his
graduation. However, the F-1 student is in the I-485 pending status and
will have to leave the US if the I-140 or I-485 is denied by the USCIS.
f) Applying Advance Parole: If the F-1 student would like to travel abroad
while his I-140 is pending, we strongly suggest that he or she apply for the
I-485 and advance parole document, which will allow the applicant to travel
in and out of the United States while the I-140 is pending. Please note
that the only way to be eligible for the advance parole, in this case, is to
file the I-485. If the I-485 is not filed at this time and the visa numbers
retrogress to the point where the numbers are no longer current, then the F
-1 student will not be able to file the I-485 or any applications for
derivative benefits, including employment authorization and advance parole.
This means that if the person leaves the United States , he/she may not be
permitted to reenter in F-1 status because he/she has shown immigrant intent
. In the current visa retrogression situations for the people born in China
and India, the filing of I-485 is not available until the visa number is
available for his/her cases. With the current backlog, it will take a couple
of years for visa numbers to become available again.
g) The status: Theory vs. Practices. Once the I-485 application is filed,
the F-1/F-2 individual is placed in a gray area. On the one hand, some
attorneys think that the person is no longer technically considered a "
nonimmigrant" because he/she cannot in theory have dual intent. On the other
hand, it may be argued that the non-immigrant intent is only required when
the individual applies for a visa of F-1, an entry into the US as F-1, or
change or extend his / her status to F-1. As a matter of practical
consideration, the USCIS does not check whether the F-1 / F-2 individual
applied I-140 / I-485, and there is no trigger event to invalidate the
individual's F-1/F-2 status just because of the filing and denial of his/her
I-140 / I-485.
"
如下，不知是否准确。请高人点评（最好逐行。。。）
谢谢。
A B 为夫妻
--A currently in the U.S. H1b w/o visa, A 在准备Eb1 I-140申请
can apply for H1b visa as usual, regardless of I-140/I-485
can use I-485 AP leave/return U.S. w/o H1b visa
can not apply for F1 after either I-140/I-485 filing
--B currently in the U.S. F1 w/ F1 visa(visa expiring summer 2012, I-20
expiring May 2012, graduation May 2012)
准备作为I-485副申请人
everything as usual before I-485 filing(the first instance that involves B,
only disclose that husband is in H1b.)
can OPT only before I-485 filing (OPT has to be processed before I-485 is processed)
can continue study/RA in current F1 status in current I-20 after filing I-
485
can leave/return US w/ existing F1 visa BEFORE I-485 filing
If no OPT, can only work after graduation w/ I-485 EAD.
can apply/work w/ H1b EAD regardless of I-485 status
If got OPT, can work w/ OPT EAD or I-485 EAD, after I-485 filing
cannot enter U.S. w/ F1 visa after I-485 filing (invalidates I-485)
cannot extend I-20 / apply for F1 again after I-485 filing
cannot apply for J visa after I-485 filing
===参考资料：
http://www.hooyou.com/f-1/140filing.htm
“a) Travel Abroad: If he/she travels abroad without the benefit of an
advance parole, there will be two likely consequences: (1) the individual
will be deemed to have abandoned his/her application for permanent residence
(I-485); and (2) the individual will have a very hard time to get F-1 visa
and probably not be permitted to enter the United States as an F student
because he/she has demonstrated "immigrant intent" by virtue of filing an I-
140 petition.
b) Applying OPT: The F-1 individual who has applied for immigrant status may
apply for F-1 OPT and usually should get OPT. However, the filing of the I-
140 and/or I-485 may make him/her ineligible to receive the F-1 OPT/EAD if
the school becomes aware that he/she filed the I-140 and/or I-485. Even if
his/her OPT/EAD application is denied, he/she would not lose his/her F-1
status so long as he/she continues to take a full time level of course work
since there is no triggering event for the USCIS to invalidate the F-1
status as a matter of practices.
c) Maintaining F-1 status: The filing of I-140 / I-485 places this
individual in a gray area with regard to his/her underlying status in the
United States . If the F-1 student remains in the United States and
continues his/her full time studies and does not travel abroad, does not
apply for a new F-1 visa abroad, and/or does not seek to extend or transfer
the Form I-20 (Certificate for Eligibility for Student Status), he/she
should be fine because there is normally no circumstance where he/she would
be asked about the disclosure of filing the I-140 and/or I-485. If, however,
in the unlikely situations that the school/consular officer does ask the
individual whether he/she filed an I-140 and/or I-485, he/she will have to
disclose that fact. If this happens, it is highly unlikely that he/she will
be able to obtain an EAD based on OPT or extend or transfer the Form I-20.
d) Applying H-1: The application of I-140 / I-485 will not affect in any way
, the F-1 student's application of H-1 since the H-1 allows a dual intent
and there is no need to disclose about the filing of I-140 or I-485 unless
the I-140 was sponsored by the H-1B employer. Generally, there should not be
a detrimental consequence if the I-140 Principal who is in F-1 status files
a Form I-129 Nonimmigrant Petition to change his/her status to H-1B. In
addition, there should not be a detrimental consequence to the I-140
Derivative Spouse and he/she can request to change to H-1B or H-4 status.
Moreover, there is no detrimental consequence to the I-140 Derivative Spouse
when changing to F-1 because the I-140 petition is not his/her petition and
therefore he/she would not have immigrant intent.
e) Applying I-485 and EAD: If the F-1 student will not be able to get OPT or
H-1 because of lack of sponsorship from an employer without working for the
employer first as a matter of practical reasons, then he or she, if
eligible, should apply for the I-485 (including any nonimmigrant dependents)
with the I-140 in order to obtain the EAD so that the F-1 may work upon his
graduation. However, the F-1 student is in the I-485 pending status and
will have to leave the US if the I-140 or I-485 is denied by the USCIS.
f) Applying Advance Parole: If the F-1 student would like to travel abroad
while his I-140 is pending, we strongly suggest that he or she apply for the
I-485 and advance parole document, which will allow the applicant to travel
in and out of the United States while the I-140 is pending. Please note
that the only way to be eligible for the advance parole, in this case, is to
file the I-485. If the I-485 is not filed at this time and the visa numbers
retrogress to the point where the numbers are no longer current, then the F
-1 student will not be able to file the I-485 or any applications for
derivative benefits, including employment authorization and advance parole.
This means that if the person leaves the United States , he/she may not be
permitted to reenter in F-1 status because he/she has shown immigrant intent
. In the current visa retrogression situations for the people born in China
and India, the filing of I-485 is not available until the visa number is
available for his/her cases. With the current backlog, it will take a couple
of years for visa numbers to become available again.
g) The status: Theory vs. Practices. Once the I-485 application is filed,
the F-1/F-2 individual is placed in a gray area. On the one hand, some
attorneys think that the person is no longer technically considered a "
nonimmigrant" because he/she cannot in theory have dual intent. On the other
hand, it may be argued that the non-immigrant intent is only required when
the individual applies for a visa of F-1, an entry into the US as F-1, or
change or extend his / her status to F-1. As a matter of practical
consideration, the USCIS does not check whether the F-1 / F-2 individual
applied I-140 / I-485, and there is no trigger event to invalidate the
individual's F-1/F-2 status just because of the filing and denial of his/her
I-140 / I-485.
"