I have been working on OPT that will expire in May. My employer will be filing my H1B petition in the first week of April for the start date of October 1st. …20 Feb 2015
… If the petition is accepted for processing, I will continue to work on OPT in F-1 status due to the cap gap. My wife, who is also a student in F-1 status, will graduate this May. After graduation, she wants to change her status to become my derivative. What filing/s should she make?
If your wife is not employed pursuant to F-1 status, she can now file an application to change status (I-539 form) to F-2 as a derivative on your F-1 status. Once her status changes to F-2 and you continue in F-1 pursuant to the cap gap, she will not need to make any additional filings to remain in F-2 because the cap gap benefit applies automatically to both the F-1 student and his/her derivative family members.
If your wife is now employed and intends to continue employment until the end of her study, she may want to wait to apply for change of status to F-2 so that she does not lose her ability to work. For example, she can apply to change to F-2 status within 60 days after the end of her program. In that case, she will need to provide evidence of your continued valid F-1 status, which could be in the form of a new I-20 for cap gap. (20.Feb.2015)
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