QUESTION

Can a dependent study full-time based on pending I-485?

Asked on Oct 09th, 2018 on Immigration - Minnesota
More details to this question:
I am applying for EB2 NIW and planning to file both I-140 and I-485 at the same time. I am currently on STEM OPT which be valid until Feb. 2020. My wife is on F-2 visa and cannot study full-time unless change her visa to F-1. However, my question is if we both apply for I-485 can she become a full-time student based on pending I-485? Also, what happens to her if my I-140 get rejected while I still maintain my F-1 opt status?
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1 ANSWER

Immigration and Nationality Law Attorney serving New York, NY
3 Awards
When an individual is filing for an I-485 application, he or she is allowed to become a full-time student based on the pending I-485. That may of course be a violation of F-2 status, and so I understand your concern of what would happen to her F-2 status if your I-140 is rejected and you still maintain your F-1 OPT status. I note that it would be difficult for U.S.C.I.S. to discover the fact of the violation as an I-140 even in a concurrent I-140/I-485 filing is generally first adjudicated before an interview is scheduled at the local field office. If the I-140 is denied, the I-485's would automatically be denied, most likely without interview. Due to the limitations of the Lawyers.com Forums, Alan Lee, Esq.'s (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.  
Answered on Nov 08th, 2018 at 6:58 PM

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