F1 Student now on OPT, marrying a USCitizen

[amrutas]

Hi,
I am working for a s/w company on OPT right now, but my OPT expires in December 2006. I am getting married to a US Citizen in first week of June '06. I would like to know if i should still need to apply for my H1 or go ahead and apply for my family based green card.

I am a little scared of being "out of status" if my EAD is not issued before my OPT expiry date. Any advice in this regard is appreciated.

Thanks!

 

[payala]

I don't think you would need to apply for an H1 since you would have enough time to get your EAD and maybe even your GC beofre your OPT expires. Just make sure you submit all the paperwork as soon as possible. It usually takes less than 90 days to get your EAD but this might get delayed so don't wait till the very last minute.

 

[ari4u]

Hi,
I am working for a s/w company on OPT right now, but my OPT expires in December 2006. I am getting married to a US Citizen in first week of June '06. I would like to know if i should still need to apply for my H1 or go ahead and apply for my family based green card.

I am a little scared of being "out of status" if my EAD is not issued before my OPT expiry date. Any advice in this regard is appreciated.

Thanks!

When you file I-485, your F-1 status is no longer valid and the OPT associated with your F-1 is also invalid. Once you file I-485, you will be in a legal status called "Pending AOS" till the application is adjudicated. If you wish to work after you file I-485, you need to have a valid H1-B OR a valid EAD (which you can apply with your I-485).

 

[chanh2k4]

Hi all,

I actually have a very similar situation as amrutas. I am working as OPT right now and it'll expire in December. My company has just filed the H1B application for me, but they said it only has 40% of chance it will get approve (due to my job title, the low salary, etc.)
So I am kind of worry it won't get approved. My girlfriend (she is a citizen) and I are thinking if we should get marry now. We have a good relationship and we will get marry sometime in the future. But if I don't get the H1B, I can't stay here anymore.
However, I am thinking will that be too suspicious if we get marry now and my OPT expires this coming December.

Should I wait for the H1B application result or do something else?
I really appreciate for your advise!

Thank you.

 

[ari4u]

Hi all,

I actually have a very similar situation as amrutas. I am working as OPT right now and it'll expire in December. My company has just filed the H1B application for me, but they said it only has 40% of chance it will get approve (due to my job title, the low salary, etc.)
So I am kind of worry it won't get approved. My girlfriend (she is a citizen) and I are thinking if we should get marry now. We have a good relationship and we will get marry sometime in the future. But if I don't get the H1B, I can't stay here anymore.
However, I am thinking will that be too suspicious if we get marry now and my OPT expires this coming December.

Should I wait for the H1B application result or do something else?
I really appreciate for your advise!

Thank you.

As long as you are marrying for good reasons; your marriage is bonafide and not a green-card marriage, why would it look suspicious? If you get married now and apply for AOS, you lose yor F-1 status and the OPT associated with it. This mean you MUST wait till your EAD is approved before you begin to work again. Best bet would be to wait for H1-B as it allows dual intent. It is your call...

 

[chanh2k4]

Best bet would be to wait for H1-B as it allows dual intent.

Thank you ari4u for your reply.
If they told me that my application for H1B was not approved in October lets say, will I still be ok to get marry at that time and file the paper work then?
As far as I know, I can not change the status once the OPT expires (60 days during the grace period).

Thank you so much.

 

[sgsnathan]

Working on OPT EAD should be fine

Though I agree with ari4u on your OPT EAD becoming invalid once you apply for AOS, I think you can continue to work as long as you are working for the same company. That is what happened in my case. I was on OPT EAD and my employer didn't care about it after initially getting the EAD to see that I am authorized to work. So I worked through the time mentioned on the OPT EAD though my wife and I had filed for AOS about 2 months before the OPT EAD expiry date. I didn't get the new AOS EAD until a month after the OPT EAD had expired. But it worked out well since we were moving for a new job for me anyway. Since like most federal agencies, IRS and USCIS probably don't care about each other except - IRS wanting you to pay the taxes and USCIS, making sure you are here in the country legally, you should be fine working on the OPT EAD. Same goes for if your AOS EAD expires too. If you have been working for the same employer continuously and they don't care about your EAD except when you first started with them, you could continue to work even if you didn't keep renewing your EADs as long as your employer doesn't keep asking for them. That's my 2 cents worth!

 

[ari4u]

Though I agree with ari4u on your OPT EAD becoming invalid once you apply for AOS, I think you can continue to work as long as you are working for the same company.

Sorry, but you are wrong. If you dont have authorization to work, it doesnt matter if you work for the same company or a different one. You need a valid employment authorization in order to be able to work.

That is what happened in my case. I was on OPT EAD and my employer didn't care about it after initially getting the EAD to see that I am authorized to work.

The employer is responsible for updating and re-verifying the employee's employment eligibility and it is the employee's responsibility to inform the employer everytime the work authorization expries or changes. If your employer did not care, this doesnt mean that all employers do not care. With the current illegal immigration issues, employers will be under a microscope to make sure they do not employ people without work authorization.

So I worked through the time mentioned on the OPT EAD though my wife and I had filed for AOS about 2 months before the OPT EAD expiry date. I didn't get the new AOS EAD until a month after the OPT EAD had expired. But it worked out well since we were moving for a new job for me anyway. Since like most federal agencies, IRS and USCIS probably don't care about each other except - IRS wanting you to pay the taxes and USCIS, making sure you are here in the country legally, you should be fine working on the OPT EAD.

Again... Your OPT was invalid, but you chose to work illegally without authorization.

Same goes for if your AOS EAD expires too. If you have been working for the same employer continuously and they don't care about your EAD except when you first started with them, you could continue to work even if you didn't keep renewing your EADs as long as your employer doesn't keep asking for them. That's my 2 cents worth!

Sorry again, but wrong advice. What you are implying is to apply for EAD only once and dont bother renewing it again as the employer would not ask for it. If you DONT have work authorization or it expired, and you still keep working, you will be working illegally. The risk is yours, but just because it worked for you, doesnt mean that's how it is supposed to be for everyone. It is also your responsibility to inform the employer of changes in your status.

No offence meant, but please think twice before you ask someone to do something illegal.

 

[sgsnathan]

ari4u,

I understand your good motive and the fact that people shouldn't be doing something illegal. But I was only trying to tell the person whatever I thought was the most practical thing. It also has to do with what USCIS (or their public face) told me. Both the people I talked to at the 1-800 number and my local DO office (at Dallas, TX) told me not to worry about the EAD as long as my employer didn't care about it. This was when I was trying to get my new AOS EAD so I could start the new job since my OPT EAD was expiring. They never raised the issue that my OPT EAD was invalid either.

I guess you maybe a lawyer or someone who likes to play it right, but I stand by what I said after all the frustrations I had to go through in interacting with the USCIS.

 

[ari4u]

ari4u,

I understand your good motive and the fact that people shouldn't be doing something illegal. But I was only trying to tell the person whatever I thought was the most practical thing. It also has to do with what USCIS (or their public face) told me. Both the people I talked to at the 1-800 number and my local DO office (at Dallas, TX) told me not to worry about the EAD as long as my employer didn't care about it. This was when I was trying to get my new AOS EAD so I could start the new job since my OPT EAD was expiring. They never raised the issue that my OPT EAD was invalid either.

I guess you maybe a lawyer or someone who likes to play it right, but I stand by what I said after all the frustrations I had to go through in interacting with the USCIS.

You should have known better than listen to the 1-800 folks who told me that I DONT need an EAD to work as i am the IR of a USC. That was the lamest thing i ever heard... that too coming from USCIS

The law is clear. You cannot work without employment authorization no matter who tells you what. As for USCIS enforcing the law is a different thing... In the wake of the illegal immigration issues, the noose is getting tighter and illegal employment will be under watch.

 

[sgsnathan]

Since you have also talked to the 1-800 guys, you understand my reasons for frustration. Coming from a country where bureaucracy is worse, I was able to handle it better than my wife who was once almost in tears with frustration after her efforts to change the address on her I-130 got her a letter from them with the wrong Case Number (but right address of course since we got it) saying that the case doesn't exist. This after she clearly spelt out everything and made the person on the other side repeat it to verify. The good thing was that the person I talked to was smarter that time and the change in address on I-485 automatically fixed the I-130 too. But I do see your point about the change in the situation with the current illegal immigration cacophony.

 

[Homermn2001]

Can you point to the law that states that filing an AOS automatically invalidates any current employment authorization? I am just curious.

 

[ari4u]

Its called the Dual Intent Doctrine

Under Section 214(b) of the Immigration and Nationality Act, (Act), most nonimmigrants who apply for adjustment of status to that of permanent residents of the United States are presumed to be intending immigrants and, therefore, are no longer eligible to maintain nonimmigrant status. Section 214(h) of the Act, however, permits aliens described in section 101(a)(15)(H)(i) and (L) of the Act, i.e., temporary workers in specialty occupations, intracompany managerial or executive transferees, and their dependent spouses and children, to maintain their nonimmigrant status during the pendency of their applications for adjustment of status.

http://www.uscis.gov/lpBin/lpext.dl...71/fr-57848?f=templates&fn=document-frame.htm

More...
http://www.americanlaw.com/dintent.html

Can you point to the law that states that filing an AOS automatically invalidates any current employment authorization? I am just curious.

Filing AOS invalidates most non-immigrant visa and its status except a few (H,L and others) as covered under the Dual Intent Doctrine. The point is... you can no longer claim to be a non-immigrant when you demonstrated intentions of immigration by filing AOS.

 

[running_swede]

Funny, I just read section 214(b) of INA. Seems to me as if it only deals with the case of immigrant intent at the time of application of nonimmigrant visa and at the point of entry. Granted, I am by no means a legal scholar, but I just do not see that section 214(b) says anyting about eligibility to maintain nonimmigrant status. What am I missing? Please read it and enlighten me:

http://www.uscis.gov/lpBin/lpext.dl...?f=templates&fn=document-frame.htm#slb-act214​

 

[chanh2k4]

Filing AOS invalidates most non-immigrant visa and its status except a few (H,L and others) as covered under the Dual Intent Doctrine. The point is... you can no longer claim to be a non-immigrant when you demonstrated intentions of immigration by filing AOS.

So, once I file the AOS, it doesn't matter if the OPT expires then. But before I receive the EAD (lets say in March 2007), can I legally stay in the country although the 1 year OPT expires (lets say in December 2006)?

 

[sgsnathan]

So, once I file the AOS, it doesn't matter if the OPT expires then. But before I receive the EAD (lets say in March 2007), can I legally stay in the country although the 1 year OPT expires (lets say in December 2006)?

Once you have filed for your AOS, you are in the country legally. The only problem with that is that you are not authorized to work unless you get an EAD and you can't return to the country if you travel outside, without an AP. Even if you have an AP, you will still not be admitted back to the country unless you had maintained your legal status while you were in the country. (eg. stayed in the country for more than 90 days after your F1-OPT expired before filing for your AOS). But then again, you are in legal status once you have filed for AOS according to my understanding.

 

[Homermn2001]

This article only talks about H-1 and L-1, it also states that you can continue employment. I do not want to doubt what anyone has said in this forum, but raise the question only so that it can be discussed and shown for future record. I've done my own search and i've seen no statement that filing AOS invalidates your EAD.

Its called the Dual Intent Doctrine

Under Section 214(b) of the Immigration and Nationality Act, (Act), most nonimmigrants who apply for adjustment of status to that of permanent residents of the United States are presumed to be intending immigrants and, therefore, are no longer eligible to maintain nonimmigrant status. Section 214(h) of the Act, however, permits aliens described in section 101(a)(15)(H)(i) and (L) of the Act, i.e., temporary workers in specialty occupations, intracompany managerial or executive transferees, and their dependent spouses and children, to maintain their nonimmigrant status during the pendency of their applications for adjustment of status.

http://www.uscis.gov/lpBin/lpext.dl...71/fr-57848?f=templates&fn=document-frame.htm

More...
http://www.americanlaw.com/dintent.html



Filing AOS invalidates most non-immigrant visa and its status except a few (H,L and others) as covered under the Dual Intent Doctrine. The point is... you can no longer claim to be a non-immigrant when you demonstrated intentions of immigration by filing AOS.

 

[ari4u]

This article only talks about H-1 and L-1, it also states that you can continue employment. I do not want to doubt what anyone has said in this forum, but raise the question only so that it can be discussed and shown for future record. I've done my own search and i've seen no statement that filing AOS invalidates your EAD.

What EAD are you referring to?
If you mean the OPT... Filing AOS invalidates F-1. One of the main requirements of the OPT is to maintain a valid F-1 status while on OPT. If F-1 status is no longer valid, the OPT associated with it is also not valid anymore. http://www.hooyou.com/f-1/opt.htm

If you have EAD from an employment based I-485, then you can still have that EAD and apply for a family based EAD too.

 

[cherr1980]

Correct...it is important to understand that F-1 visa is NOT a dual intent is a non-immigrant visa as most non-immigrant visas like F-1, B-2 etc, once the person applies for adjustment of status to US permanent residency the previous status is not longer valid, the new status is "Adjusment of status" or "adjustee", that is why people in non-immigrant visas, again like F-1, B2 etc most apply for Advance Parole if they want to be able to re-enter the US.

Those type of non-immigrant (F1, B2, etc) visas does not allow dual status.

 

[Homermn2001]

Without seeing the applicable CFR reflecting this, I cannot assume that the EAD automatically terminates.

Correct...it is important to understand that F-1 visa is NOT a dual intent is a non-immigrant visa as most non-immigrant visas like F-1, B-2 etc, once the person applies for adjustment of status to US permanent residency the previous status is not longer valid, the new status is "Adjusment of status" or "adjustee", that is why people in non-immigrant visas, again like F-1, B2 etc most apply for Advance Parole if they want to be able to re-enter the US.

Those type of non-immigrant (F1, B2, etc) visas does not allow dual status.