Divorce before green card petition approval, was on F-1 and working under OPT

[johnny5alive 0]

Hello,

I am a native U.S. citizen who married a Chinese citizen in October, 2014. She is here on an F-1 visa and was working on her PhD (in one of the STEM program degrees), which she completed and then graduated in May, 2014. She began her OPT in April, 2014 and has been working under that since graduation.

In December, 2014 we submitted all of the paperwork for the Green Card application (submitting the petition and all of her paperwork at the same time). I am, of course, the petitioner, and my petition was accepted but has still not been approved. Once she received employment authorization through the green card application, she began working under that, and let her OPT expire in April, 2015, rather than applying for the OPT STEM program extension.

For reasons I can best describe as irreconcilable differences, I am going to file for divorce. Not because of domestic violence, cheating, deception, or anything like that. We got married with the best of intentions, out of love, and it really was bona fide. It just didn't work out, and we need to part and go our separate ways.

I am really worried what will happen to her status, however. I know that once I cancel my petition, her employment authorization will become invalid. She has a good job, and has interned at a couple of places while in school and worked here since graduation, and wants to remain here and work. I don't want her to be unable to work, and I certainly don't want her to be forced to leave the country because of this.

If we had not gone through the GC application process and she had simply applied for the OPT STEM extension, everything would be fine. But, from what I can tell, it's too late to even apply for that because her OPT already expired. She also checked with her employer, who is a contract company that handles contractors for a large research company, and they said that they are not capable of applying for an H-1B visa. I should note that she is also currently looking for a new job, and already has several offers, since there has been talk of coming layoffs where she is working now.

What are her options here? What can she do to remain here and also be able to work legally? I want to get this divorce and move on with my life, and not draw this out, but at the same time, I don't want to screw her over. Any help or advice would be greatly appreciated!

[Boiler 46,034]

Basically she has the same option as if you were not involved and her OPT had ended.

If she wants to work then she needs to find an Employer not subject to the cap to offer her a job and sponsor her.

You did not say her field of work.

[johnny5alive 0]

She is a Chemical Engineer. Especially batteries and related research.

Is it absolutely not possible to apply for the STEM OPT extension after the OPT expiry date? It was literally like two weeks ago.

[Boiler 46,034]

Check but as I understand it as soon as she used EAD, why?, then the prior staus is defunct and anyway it would be short term.

Probably a University position would be the most likely non cap. She will know better than we will.

[johnny5alive 0]

So using the EAD automatically caused her previous status (OPT) to become defunct invalid?

[Sandra G. 5,057]

johnny5alive in order to apply for an OPT extension the alien must apply prior to the expiration date ok.

Edited May 15, 2015 by sandranj

[Boiler 46,034]

That much I do know, see it more often with people on work visas who then use EAD/AP. You are in one or the other.

Now the question is why she used EAD? Change of job?

[johnny5alive 0]

I think she did it simply to avoid having to extend her OPT. To not have to pay the application fee (which really doesn't make any sense to me now that I think about it, due to the tax treaty) and because of what people would think, why she still needed to work under OPT when she could be getting a green card. I don't know, this is just how she thinks. I don't get it.

[Boiler 46,034]

Water under the bridge.

[johnny5alive 0]

Can an employer sponsor her for H1B so she can start working using that, even before the GC petition is cancelled and thus she still has that EAD? In order to avoid any gap, I mean.

Also, if she did have to go through this H1B lottery process (which, from what I can tell, means we would somehow need to make it until October), how bad is it? Are chances pretty good, or pretty slim?

[Boiler 46,034]

Can an employer sponsor her for H1B so she can start working using that, even before the GC petition is cancelled and thus she still has that EAD? In order to avoid any gap, I mean.

Also, if she did have to go through this H1B lottery process (which, from what I can tell, means we would somehow need to make it until October), how bad is it? Are chances pretty good, or pretty slim?

October 2016

About 40% say.

That is why I mentioned non cap, Uni Lecturer etc.

[johnny5alive 0]

You mean it's already too late for this year?? All I saw was the beginning date of April 1.

[Boiler 46,034]

It was 3x over subscribed so they closed it and had the lottery.

[johnny5alive 0]

It looks like she might meet the criteria for an EB-1 visa as well. Can she apply for this while she's still working under the EAD? And then, if/when it is approved, simply start working under that and then cancel the petition? I ask this because of the fact that starting to work under the EAD caused her OPT to automatically become defunct. That makes it sound like you can't have more than one status/authorization or whatever you call it.

[Boiler 46,034]

That sounds a push, but certainly something to talk to her Employer about. Has no impact on current status.