F1/OPT and 485- Ignorance is not bliss

jaxen

Volunteer Moderator
#1
I get these questions a lot in the H and the 485 forums and I see that many F1, F2 (and OPT) holders are having this misunderstanding about having a F1 or OPT and applying for 485 changes your status scenario marginally. I will list the following observations.

1. Whether you are on F or OPT, as soon as you apply for I485 (from its Receipt date) you are a I485 adjustee.No longer F or OPT.
2. You cannot be on I485 adjustee and F visa or OPT. So apply for EAD(485 based,not OPT) along with 485 and then file I-9 with employer ,if you are on OPT or with school if you are on F1 and diligently renew the 485 based EAD. Also apply for AP, from now onwards you have to use AP for travel.

The primary reason is that a F visa holder should prove non immigration intention every minute. By filing I485 you have violated a fundamental tenet of this requirement. You can go through a dual intent visa like H or L towards GC/I485. Direct F (OPT) to 485 is a land of mines and you have to tread carefully.

Request to the moderator: Could you stick this up please?
 
#2
what if 485 is rejected/denied

Hi,
I have 2 questions related to the above post.
(1) What if in the days prior to concurrent filing being available, a I-140 and I-485 were filed together (just taking a chance in the hope that both may be accepted when filed together) while on F1, but since c.f. was not available the I-140 was processed but I-485 sent back (with fee check). Will this affect the F1 in any way?
(2) What if the I-485 is denied for some reason. Shouldnt the person revert to F1 in that case (assuming he/she has maintained all other aspects of F1 status requirements).
 
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tipsyclub

Registered Users (C)
#3
F1/OPT and 485- Question

My wife is on F1 and wants to apply for AOS with me along with my 140 and 485.Are there any problems/queries from INS in this case.If so please let us know ,we'd like to rethink our decision.

And Can my wife apply for her OPT and I-485(AOS) with me at the same time?If so what're the consequences.

Please let's know the answer ASAP.

Thanks for your patience.
Kiran
 

gbandi

Registered Users (C)
#4
I130 and I485

I am GC holder since 1992, applying for US citizenship PD 5/25/2004. My fiancee is on F1-OPT which expires 7/2005. She has been living me since last 2 years (since she moved from India) . Iam planning to apply for her GC when i get my citizenship.

Questions:
At what point should we get married? after my interview, after my oath, now?

we will file 130/485/765/131 together
should she use her maiden name?
is it unsafe to apply 485/AOS (family based) from F1 status?
how long does it take for EAD to come back after i apply?
what is her status after applying for EAD (she is cuurently on OPT/EAD)?
what are the cahnces of 485 getting rejected?

answers appreciated

Gaurav :cool:
 

LucyMO

Registered Users (C)
#5
well, it's certainly an interesting issue. My school's International Center recommends that you maintain F-1 status (by not getting AOS EAD and by not working with it and not travelling on AP) even after you apply for AOS. Also, maintaining full-time enrollment and other attributes of maintaining F-1 status are a must. In this case, they told us, if your I-485 is rejected, you are still in F-1 status and can continue being in it without a need for reinstatement.

They had an information session with INS last year, whereupon this recommendation was offered to my school by INS.
 
#6
Re-entry on OPT card when I-130 has been filed?

I am asking this for a friend. KC is on F-1 with multiple entry and validity upto 2006.
He finished his postgraduate studies and also has been issued EAD , so he is under OPT period till August 2005. KC still does not have a job at present.

KC got married to a girl with Greencard in Nov., 2003 and his spouse filed I-130 for him in January 2004, which is still pending a decision. I-130 is just a petition to get KC a greencard and it is not an application for greencard(I-485). KC can apply for greencard(I-485) only if his I-130 gets approved.
Meantime KC wants to travel to India for 4 months and 3 weeks .

What problems can he face at the POE on his return to US? Can he be denied entry in to US just because his wife has filed a petition I-130 for him ?
What steps can he take or documents he can carry to strengthen his case for reentry at the POE?


Please help.

Thanks
 

LucyMO

Registered Users (C)
#7
What problems can he face at the POE on his return to US? Can he be denied entry in to US just because his wife has filed a petition I-130 for him ?


He certainly can be denied entrance at POE, since I-130 was filed for him.


What steps can he take or documents he can carry to strengthen his case for reentry at the POE? Really none.

P.S. he can apply for AOS only when his visa number is available, a simple approval of his I-130 does not give him an opportunity to file for AOS.
 

jaxen

Volunteer Moderator
#9
If Visa number is not available then he cannot apply for concurrent 485. In which case he can file for AP based on OPT and use that AP to enter US. Having a pending 130 will not be a reason for denial into US.
Having a 130 and appearing for a visa interview at a US consulate is a risky move. So AP is the only solution here.
 

Radni

Registered Users (C)
#10
jaxen said:
If Visa number is not available then he cannot apply for concurrent 485. In which case he can file for AP based on OPT and use that AP to enter US. Having a pending 130 will not be a reason for denial into US.
Having a 130 and appearing for a visa interview at a US consulate is a risky move. So AP is the only solution here.
1. Does he have to file the form I 131 for AP? 2. Does he have to file it while he is in US or can he file after leaving US? 3. How long does it take to get a decision on I 131?
 

Radni

Registered Users (C)
#12
But he already has EAD ! He is on valid F1 , but comleted his masters studies, and then he is under OPT with EAD issued to him . The EAD issued to him is still valid till Aug., 2005.
 

LucyMO

Registered Users (C)
#13
There is no such thing as AP based on OPT. If a F-1 student decides to leave the States and reenter while on OPT, he/she has to have a valid F-1 visa. If his visa is no longer valid, he/she will have to apply for a new F-1 visa.

As for EAD, we are not talking about OPT EAD, but about AOS EAD.
 

great guru

Volunteer Moderator
#14
OPT is conditional EAD for 12 months only

Once studies are over F1 is over. OPT is just previlage and not a rights to stay in US.
With OPT, any one goes out, there is no guarentee to re-enter, POE definitely deny the entry. Because it is an optional practical (not a mandatory) training. This training you may get it in your home country.
 

sriram1975

Registered Users (C)
#15
Hi Jaxen,
My wife is currently an F1 student. She is graduating in Dec'04. She had her EAD approved two days ago based on my GC application. Based on your post, you are saying that she cannot apply for OPT as she has already applied for AOS? So she better start working on her EAD and not even worth spending the money to apply for OPT. Is that right? Pls advise. I'm :confused:


jaxen said:
I get these questions a lot in the H and the 485 forums and I see that many F1, F2 (and OPT) holders are having this misunderstanding about having a F1 or OPT and applying for 485 changes your status scenario marginally. I will list the following observations.

1. Whether you are on F or OPT, as soon as you apply for I485 (from its Receipt date) you are a I485 adjustee.No longer F or OPT.
2. You cannot be on I485 adjustee and F visa or OPT. So apply for EAD(485 based,not OPT) along with 485 and then file I-9 with employer ,if you are on OPT or with school if you are on F1 and diligently renew the 485 based EAD. Also apply for AP, from now onwards you have to use AP for travel.

The primary reason is that a F visa holder should prove non immigration intention every minute. By filing I485 you have violated a fundamental tenet of this requirement. You can go through a dual intent visa like H or L towards GC/I485. Direct F (OPT) to 485 is a land of mines and you have to tread carefully.

Request to the moderator: Could you stick this up please?
 

NJ07054

Registered Users (C)
#16
Guys,
I am a bit confused here.... some of you guys are talking about applying 485 while being on F1/OPT

********************
1. Whether you are on F or OPT, as soon as you apply for I485 (from its Receipt date) you are a I485 adjustee.No longer F or OPT.
**************************

Can you apply 485 while on F1/OPT? Don't you need an employer to sponsor you? I thought only PhD guys could adjust their status themselves (i.e. without the need for a employer) and that too AFTER they complete their phD.

Can a masters student apply for his/her own 485?
 

LucyMO

Registered Users (C)
#17
people are applying for AOS based on different circumstances: marriage to USC, employment-based GC, DV lottery, etc.

Once you apply for AOS, you can choose to maintain your F-1 status by NOT using your AOS EAD (don't get one) and AP. And, of course, regular status-maintaining rules apply (full time enrollment, etc.)
 

blue25

Registered Users (C)
#18
What if you file for AOS based on DV and don't register for classes? Can an officer deny your GC during GC interview based on your F-1 out of status? My understanding is that if you are out of F-1 status longer then 180 days, then you don't stand a chance at an interview. Is that right? What about less then 180 days?
 

Biostudent

Registered Users (C)
#19
I'm lost on the conversarion, but as I understand, 485 is for adjustment of status. I have a question....I've been on F1 for 6 years, is there anyway I can apply for permanent residency without the help of an employer?? These laws keep changing and I can't keep up....Any help!? Thanks! :D
 

LucyMO

Registered Users (C)
#20
if you have an advanced degree, you could apply for a GC based on outstanding abilities. Read about it on www.uscis.gov


Blue, if you are in status when you apply for AOS, then you can stop going to school after you get a notice of receipt for AOS.
 
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