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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24185
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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*** This message is for JUDITH *** Dear Judith, I have

Resolved Question:

*** This message is for JUDITH ***

Dear Judith,

I have a few questions about my wife please.

You know my situation by now: I am here on H-1B and my wife is here on H-4.

My wife is going back to her home country of Brazil soon.

When she is there she wants to get an F-1 student visa and come back.

She wants the F-1 visa instead of the H-4 because she wants to work.

As you know the H-4 does not allow her to work and with the F-1 she can work for 20 hours a week at the school she gets admission to.

So here are my questions:

1) How does she do this?

2) When she comes back with the F-1, can we apply for a Green Card together?

3) If we cannot apply for the Green Card together and she must change her status to H-4, how can she do that?

4) I understand how an H-1B or an H-4 holder falls out of status, but how does an F-1 visa
holder fall out of status.

5) If she gets an F-1 and falls out of status, how can she then change to H-4?

thank you so much

Asad
Submitted: 8 months ago.
Category: Immigration Law
Expert:  Judith replied 8 months ago.

Hello Asad.

One quick question because I vaguely remember something about an I-140 having been filed for you.

Do you have any approved immigrant petitions?

I went back through your old questions and didn't see anything, but I could have missed it.

Judith

Customer: replied 8 months ago.

Hi Judith,


 


with my previous employer (Mobile Doctors) they had sponsored me for the Green Card.


 


The PERM Labor certification was approved. Also the I-140 was approved.


 


I think my priority date is October 2012 (or so).


 


The I-485 was not been filed yet and then the company shut down.


 


So now I had to start the ENTIRE process all over again with my new Employer: H-1B for my myself, H-4 for my wife, and then the entire Green Card process (PERM, I-140, I-485).


 


Thanks


 


Asad

Expert:  Judith replied 8 months ago.

Thanks Asad.

So here are my questions:

1) How does she do this?
She has to get the I-20 from her school. Here is the guide, step-by-step to becoming a student. If she is already enrolled she will skip that process and go to the International Students Office and speak to them about getting an I-20.
2) When she comes back with the F-1, can we apply for a Green Card together?
Well you will need to begin the PERM process all over again. She does not get involved in the application process until you file the I-485. So yes, then you would file your I-485s concurrently.
3) If we cannot apply for the Green Card together and she must change her status to H-4, how can she do that?
She can apply for her adjustment of status from the F1 status. She does not have to hold H4 to apply as your derivative beneficiary. Your marriage is what gives her the eligibility as a derivative, not her visa status.
4) I understand how an H-1B or an H-4 holder falls out of status, but how does an F-1 visa
holder fall out of status.
By failing to attend school full-time.
5) If she gets an F-1 and falls out of status, how can she then change to H-4?

She would have to leave the US and apply for a new H4 visa at the Embassy or consulate in Brazil.

 

Judith

Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24185
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
Judith and 3 other Immigration Law Specialists are ready to help you
Customer: replied 8 months ago.

Thank you Judith for your excellent response.


 


So, when the I-485 is filed, does my wife have to be in some visa status (either H-4 or F-1) to apply for the Green Cards together?


 


For example if she is 'out of status' (no valid F-1 status and no valid 'H-4') but we are still married, is our marriage sufficient enough to give her eligibility to be a derivative on the Green Card application?


 


Asad

Customer: replied 8 months ago.

Also one more follow-up question please:


 


When my wife and I got married, we got married in Brazil. So our marriage certificate is from Brazil and it is in Portuguese. We do have an English translation.


 


Do you we need to get married here in Michigan (U.S.) and get a marriage certificate from Michigan in order for us to apply for the Green Cards together?


 


Or will the marriage certificate from Brazil be sufficient?


 


Thank you

Expert:  Judith replied 8 months ago.

Hi Asad, sorry for the delay. Had an important phone call to take.

Your marriage in Brazil is recognized by the US as long as it is recognized in Brazil.

So there is no need to get married in MI as you are lawfully married in the eyes of the US.

Judith

Customer: replied 8 months ago.

Thank you Judith for your excellent response.


 


One final follow up question for today:


 


So, when the I-485 is filed, does my wife have to be in some visa status (either H-4 or F-1) to apply for the Green Cards together?


 


 


 


For example if she is 'out of status' (no valid F-1 status and no valid 'H-4') but we are still married, is our marriage sufficient enough to give her eligibility to be a derivative on the Green Card application?


 


Thank you so much


 


 


Asad

Expert:  Judith replied 8 months ago.

Asad,

Your wife must be "in status" to be eligible for adjustment of status.

Only spouses, parents and minor children of US citizens can file if out of status when filing based on the relationship.

 

Judith

 

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