Discussion on F-1 status filing I-485

D

duke_of_ca

Registered Users (C)
Hi there,

I notice there are several issues related to F-1 filing I485 cases (follow-to-join) in the past. It sits in a grey area and causes many confusions among the relevant ppl. I think for those the following information is useful for you or your spouse.


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BILLING CODE 4410-10-M
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 245 and 274a
[INS No. 1676-94]
RIN 1115-AD83
Adjustment of Status to That of Person Admitted for Permanent
Residence; Temporary Removal of Certain Restrictions of Eligibility
... ...
Clarification of the Term "Otherwise Violated the Terms of a Nonimmigrant Visa" in New Section 245(c)(8) of the Act
For purposes of section 245(c)(8) of the Act, an alien will not be deemed to have "otherwise violated the terms of a nonimmigrant visa" merely by filing an application for adjustment of status, provided that such filing was in accordance with 8 CFR 103.2(a) and occurred prior to the expiration of the alien's nonimmigrant status. Further, for purposes of section 245(c)(8) of the Act, an alien will not be deemed to have "otherwise violated the terms of a nonimmigrant visa" if: (a) The alien's failure to maintain status was through no fault of his or her own or for technical reasons, as defined in 8 CFR 245.1(d)(2); (b) the alien was granted a change of nonimmigrant status pursuant to 8 CFR 248.1(b); (c) the alien was granted an extension of nonimmigrant stay pursuant to current Operations Instructions 214.1 or any previous analogous Operations Instructions; (d) the alien was granted an extension of nonimmigrant stay based on a timely filed extension application which the Service approved after the alien's authorized nonimmigrant period of stay expired; or (e) the alien was granted reinstatement to student status pursuant to 8 CFR 214.2(f)(16) on the basis of circumstances beyond the student's control.

... ... ...
======================

This clarification indicates that as long as your current F-1 status is valid and qualified to file AOS, there is no violation of the visa term (including immigration intent).

At this point, I have disargreement with Lawyer Murthy's explanation. She claims that the F-1 will be lost upon filing I-485. The above text clearly shows that F-1 status is protected by this code.

What is your thought? Any input is welcomed.

duke
 
duke,

Will you please see: Please help:H1B transfer after using AP ; thread started by i486i486?

You may be able to help.
 
Duke:
Thanks a lot for your comprehensive information. I have a further question: my wife is graduating, and she is applying for an working authroization under OPT (Optimal Practical Training). Will this cause any probelm for our AOS? or will she have problem in getting her OPT? Thanks a lot!
 
Hi i485i485,

If your wife has submitted I485, it is most likely that BCIS will not grant her OPT EAD. This is because they can not accept/grant any new nonimmigration application if your wife has immigration intent. This is different from maintaining status.

Anyway, your wife can file an AOS EAD. That has wider range of coverage.


Duke
 
Hi there,

In my last statement, I say "This is because they can not accept/grant any new nonimmigration application if your wife has immigration intent. "

This is only applicable to F-1/F-2 B1/B2 etc. H1B allows dual intent and thereby the statement might not be true for that.

Duke
 
Duke: If my wife try to get an interim OPT EAD (before the service center make a decsion) or she is granted an OPT EAD anyway, will this affect our I485 application? Thanks a lot!
 
Hi i486i486,

In the worst case scenario, the BCIS officer can claim that your wife shows non-immigration intent later by her OPT F-1 filing after she filed I485. To estimate its real risk, you should ask an experienced lawyer.

My suggestion is to file AOS EAD. Different from OPT F-1, it has broader coverage and no life limit. She will wait 3 months for an iEAD, which is the same as she do for an OPT EAD.

The only merit I can see in OPT EAD case is that she will get back to F-1 rather than be out of status if your I485 is denied. Is it your concern?

Duke
 
The layer says she can still keep her F1 status while filing i485 if she didn't use AP and EAD to travel or work, although she can apply for AP and EAD and keep them at hand. While keeping her F-1 , she can still apply for OPT EAD to work. Does this make sense to you?
 
F1 status while i485 Pending : Traveling Abroad

B]The layer says she can still keep her F1 status while filing i485 if she didn't use AP and EAD to travel or work, although she can apply for AP and EAD and keep them at hand. While keeping her F-1 , she can still apply for OPT EAD to work. Does this make sense to you?[/B]

Does it mean that anyone on F1 and 485 pending status looses F1 status if travelled abroad on AP ? What happens to his/her F1 status after the AOS is filed ?
I have a similar situation. Please help.
 
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