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Ely, Counselor at Law
Category: Immigration Law
Satisfied Customers: 3933
Experience:  Private practice in several areas, including immigration
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I have filed Adjustment of status wife in Nov-2013 that time

Customer Question

I have filed Adjustment of status for my wife in Nov-2013 that time she was on H1-B visa but then later last year (Dec-2014) she had to file I-539 to change her visa status to F1. Now her I-765 has been approved and she has already received her EAD card.
Also she is having an interview next month for her Adjustment of status although her I-539(F1) is still pending. So will that cause any problem? What if her I-539 is denied (Does she has to go back to home country and do the counselor processing ? Since we
have filed I-539 my wife is regularly attending college. Please help.
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Nathalie Gottschalk, replied 1 year ago.

You filed an adjustment of status based on what benefit? Marriage to US citizen? approved labor certification?

Not sure why you you filed F1 status when she already filed for adjustment. The F1 visa request will probably be denied because you cannot have immigrant intent. I hope that the adjustment of status was properly filed and she qualifies. With the limited information you are providing, it is hard to tell if she qualifies.

Customer: replied 1 year ago.
Hi Nathalie, Thanks for your quick response. I filed an adjustment of status based on my green card. Marriage to Green Card holder. We filed F1 status because 6years of her H1-B visa was ending in December 2014 and I wanted to keep my wife with me here in U.S.
Expert:  Nathalie Gottschalk, replied 1 year ago.

ok, but once you filed for adjustment (assuming her priority date was current) she would have been ok. You don't accrue unlawful presence if you properly file for adjustment of status before the H status ends.

Customer: replied 1 year ago.
Sorry Nathalie, I am out of my mind because of this stress. Actually I filed I-130 in Nov-2013 and that was approved last year. Although we were waiting for her priority date and which became current in August 2015. I am so sorry for the confusion .
Customer: replied 1 year ago.
Then we filed her Adjustment of status and I-765, I-765 just got approved last week and we received her EAD card yesterday.
Expert:  Nathalie Gottschalk, replied 1 year ago.

As long as you filed for adjustment of status when her priority date was current and BEFORE her H finished, you should be ok.

Once her adjustment of status application is approved at the interview, you should tell the officer that you want to withdraw the F application.

Customer: replied 1 year ago.
Hi Nathalie, I think I am creating little confusion here. We files I-539 before her H1 finished last year in December. Although I-539 is still pending and she is staying in this country based on that Pending decision.One of the online forum AVVO told me that : they may wait adjustment for the approval to F-1, as that is the only way they can be sure she is still "in status" at time of adjustment.So I am really worried.
Customer: replied 1 year ago.
Please review:
Customer: replied 1 year ago.
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Expert:  Nathalie Gottschalk, replied 1 year ago.

I see. Well, the good thing is that she was NOT out of status this whole time. The worse thing it could happen is that she must consular process. Since she has not accrued unlawful presence, then no need for a waiver to cure unlawful presence. I would hire an attorney to go with you to the interview if I were you.

Customer: replied 1 year ago.
Do you know how long consular process would take ? I really don't want her to go through consular processing as we have already paid so much fees just to keep her here and also to adjust her status within this country.
Customer: replied 1 year ago.
Also, Even though her Student visa (F-1) will get denied. Can't she legally stay in this country based on her EAD card? What if she gets her green card and then her student visa decision comes? which status will be valid?