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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 105568
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Name is. My wife and I went here in United States last 2007

Customer Question

Hi name is***** wife and I went here in United States last 2007 with a tourist visa. We decided to stay and I secure F-20 (student visa) and have my wife as a dependent; to extend our stay. My wife found a work and applied for adjustment of status from her job. She filed for the EB3 last 2009 while I remain at F20 and continued my studies up to date. While having myself enrolled in school, I was granted work authorization and secured an SSN. I used my SSN to work even after the work authorization granted from the issuance of my SSN. Last May of 2015, my wife was able to secure her work permit, and she’s just waiting for her Green Card. Its tax season this month (February), and my first question is how she should file her income tax? Does she have to put me as a dependent, knowing that I’ve been filing my tax for the last 4 years? What are the repercussions of me using my SSN for work versus my filing for application as a derivative of my wife’s Green Card status? What is my timeframe for me to secure Green Card, if I apply for it after my wife secure one? What are the requirements for me to apply?
Submitted: 9 months ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 9 months ago.

Hello! My name is***** and I am a licensed attorney with more than 13 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help.

Did you file an I-485 with her I-485? Do you have a work permit through that I-485 or do you have a work permit through OPT?

Customer: replied 9 months ago.
I have work permit through OPT
Customer: replied 9 months ago.
She applied on her own for I-485.. we were planning to have her secure one then me as the dependent
Expert:  Guillermo J. Senmartin, Esq. replied 9 months ago.

Well, let's start with the green card. You need to file your I-485 based upon her I-140 while her I-485 is pending. If you file AFTER her I-485 is approved, your I-485 will be denied. She would then have to file an I-130 for you and you would be waiting a year and a half or more before you can file an I-485 and you would have to maintain your own status separately. As far as taxes go, she should put you as a dependent only if you are actually a dependent. If you are filing your taxes independently, she shouldn't be able to claim you. Regardless, whichever way you choose, it should not have an impact on your immigration status as long as the marriage is real and you are otherwise maintaining your status. For more specific information of tax consequences not related to immigration, you should speak to an accountant.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! When we are done, if you would be so kind as to leave a positive rating for my service, I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. You can even ask additional questions without additional charge even after leaving a positive rating. Thank you for your understanding.

Customer: replied 9 months ago.
The I-30's usual time frame depends on the visa classification/availability? Her I-485 is approved so I have to file the I-30
Customer: replied 9 months ago.
Me working under the student visa (F20) will not affect or have an impact on my immigration status or if I file for I-30?
Customer: replied 9 months ago.
me filing taxes too?
Expert:  Guillermo J. Senmartin, Esq. replied 9 months ago.

Her I-485 is based upon her I-140. For you to get Residency through that I-140, you need to file the I-485 before her I-485 is approved. If you wait until after her I-485 is approved to file, then you can no longer use her I-140. She has to file an I-130 through her and that will take a year and a half or more before you can file an I-485 based on her I-130 petition for you.

I really don't understand why you don't want to do it like that. Anyway, if you take the long way around and she has to file an I-130 for you, then you should not travel using the F-1 nor should you make any changes like extension of F-1, change of OPT, or anything other than apply for H-1B because with an I-130 pending for you, you could have problems because an F-1 requires non-immigrant intent and with a pending I-130, that is evidence of immigrant intent. Even with a pending I-140 as derivative, it's still dangerous to make changes to the F-1 status.

Taxes should not effect the immigration status other than what I mentioned before. But speak to an accountant about tax consequences that are not related to immigration.

Let me know if you need anything else, but please do not forget to rate me positively. You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. Thank you!

Expert:  Guillermo J. Senmartin, Esq. replied 9 months ago.

Hello Cid. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!

Expert:  Guillermo J. Senmartin, Esq. replied 9 months ago.

Hello. I'm just following up with you again to see how everything is going. Did my answer help? Please let me know. Thank you!

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