get F1 after 485 pending

[jjaspirant]

My 485 is pending and 140 is approved. I plan to apply for an MBA to join in Fall 2009. I wanted to check if there is a possibility that my F1 can be denied. If so, is there anything I can do about this? I am willing to let go of the filed 485.

 

[jk0274]

If you are planning to go abroad and apply for an F-1 visa stamp at a consulate, it will very likely be denied. As for changing status in the US to F-1, what status are you in now?

 

[nj_skm]

It's almost guaranteed to be denied. There is a rule that F1 will be denied to anyone who shows an immigrant intent or could be a potential immigrant.
Filing for I-485 is a very clear demonstration of immigrant and an F1 will be automatically denied.
What you could do is use your AOS and go to school full time and continue after 485 approval. This could be risky (and I'm sure others will point it out) and 485 could get denied. The good news about this approach is that you can use your EAD to continue working till Fall 09 and also to get a part time job while in school.
If you want to be 100% safe, the only way I can see is that you wait for 485 to get approved and then go to school.
Can you include your case details?

 

[manwithnoname]

In addition to the replies above, I would like to add that, if your I-485 application is employment based then you have to satisfy the terms of employment at all times. However, you can enroll for MBA.

 

[TheRealCanadian]

In addition to the replies above, I would like to add that, if your I-485 application is employment based then you have to satisfy the terms of employment at all times.

There is no such requirement.

 

[nj_skm]

In addition to the replies above, I would like to add that, if your I-485 application is employment based then you have to satisfy the terms of employment at all times. However, you can enroll for MBA.

I'm surprised to hear you say that. Since it's for a future job offer, he doesn't need to do squat till the 485 actually gets approved. Even after that, there is no explicit rule saying that he needs to take up the job.

 

[number30]

I'm surprised to hear you say that. Since it's for a future job offer, he doesn't need to do squat till the 485 actually gets approved. ,

Although it is future job he needs to have a valid offer through out the process.

Even after that there is no explicit rule saying that he needs to take up the job.

No. Once the case is approved he has to have the job Otherwise it is a fraud.

 

[TheRealCanadian]

Although it is future job he needs to have a valid offer through out the process.

Not necessarily. He needs to have a valid offer at I-485 filing, and at adjudication. Not in between.

 

[jjaspirant]

My current status

If you are planning to go abroad and apply for an F-1 visa stamp at a consulate, it will very likely be denied. As for changing status in the US to F-1, what status are you in now?

I'm currently on an L1 which is valid till end of 2009

 

[jjaspirant]

Thanks for the replies

Thanks for the responses everyone. 4 detailed questions:

* Does anyone know of cases where the F1 was approved? What if I abandon the I-485 and give them some official documentation that I am doing this?

* If I try for a change of status to F1 and it is denied, will this affect my EAD and/or L1?

* If the F1 is approved, can I stay in the country to resign from my job?

* If I go abroad to study and abandon the GC application, can I come back in a few years and restart the process?

I thought about going to school with the EAD, but since it is employment based, I have to have an engineering job when the I-485 is approved.

 

[nj_skm]

* Does anyone know of cases where the F1 was approved?

No, but I heard of a case when it got denied. This was for a guy who was on H1, had an I-485 pending and got admitted at Harvard. He resigned his job and applied for F1 which prompty got denied, based on the fact that he had previously applied for an I-485.

What if I abandon the I-485 and give them some official documentation that I am doing this?

I don't know if there is a mechanism in place to do this. At the time of F1 issuance, they will only look to see if there exists a chance that you could be a potential immigrant.

* If I try for a change of status to F1 and it is denied, will this affect my EAD and/or L1?

No. You're good to continue with your L1/EAD

* If the F1 is approved, can I stay in the country to resign from my job?

In the unlikely event that the F1 gets approved, yes. Try to talk to the school's international students office. They *might* be able to advise you on this.

* If I go abroad to study and abandon the GC application, can I come back in a few years and restart the process?

Yes. But a lot of people wouldn't like to abandon it since it would cause you to lose time and you never know just how badly screwed up the process could get in the future. It's just been getting worse over time.

I thought about going to school with the EAD, but since it is employment based, I have to have an engineering job when the I-485 is approved.

True, but USCIS rarely follows up to see if the applicant has taken up the job. But yes, this is risky.

Why don't you give us your case details? Country, PD etc?

 

[jk0274]

jjaspirant,

You already have an approved I-140 regardless of what you decide to do with I-485. The fact that you have an approved immigrant petition will definitely affect your plans.

 

[jjaspirant]

My PD is Feb 2007. My country of origin is India. My I140 is approved and I485 has been pending for more than 180 days. I have an EAD and an AP. I'm in the EB3 category.

 

[nj_skm]

In which case you have no hope of getting approved any time soon. If you wish to go to school, you can't do it in this country on an F1, sorry.
So your options are:
1. If you want to continue living in the US, stick to your job or use AC21 if you want to change jobs. This will considerably delay your school plans.
2. If going to school is a higher priority, forget the US and look for a school elsewhere.
3. If you want to live in the US AND go to school, consider going to school part time. This will have the restriction that you'll need to find a job/school in the same city that you have the school/job, for physical reasons, obviously.

4. There is another, riskier, option: just go to school full time on AOS. As long as your employer doesn't withdraw the 140, you're fine. Finish school, get a job in a new field using EAD and pursue a new career. If there is no RFE on your 485 and you get approved in a few years, continue in the new line. This could be considered fraud by the USCIS and is not a recommended option, but *could* work out, depending on how your stars are aligned...
Or else, for a less risky option, once your GC is approved, come back to the sponsoring employer, work in the job listed for six months or so and go back to whatever you were doing. This is a better option if the employer is supportive and things could work out for you.