OPT, I-130 and 485, Conflicting Intent Questions, Please Read!!

[Arctura]

Dear all, your knowledge is much appreciated here.

I am a F-1 student who is going to graduate this May (05/2007). Also, I am about to marry my long-time girlfriend (a citizen).

I basically have three questions:

First, after I file the I-130 and 485, what will my status be? I assume that I will retain my F-status until my status is adjusted at the interview. Is that right?

Second, since I am graduating this May, my F-status will expire at that time. The only way for me to stay in status “after graduation and before the adjustment-of-status interview” seems to be OPT. Is that right? Are there any other options other than OPT?

Third, if I am getting OPT in order to stay in status after graduation, I think I should apply for my OPT before I file the I-130 and 485. It’s my understanding—not sure if it’s true—that you cannot have the intent to immigrate when you apply for OPT (just like F-1). Therefore, if I file the I-130 and 485 (which show the intent to immigrate) before I file for OPT, it would seem like that I am lying on my OPT application. Is my reasoning sound? Have any of you been through this before? If so, please kindly share your knowledge.

Thank you,
Arctura

 

[LucyMO]

First, after I file the I-130 and 485, what will my status be? I assume that I will retain my F-status until my status is adjusted at the interview. Is that right?

no. you will now be in "AOS pending" status. You no longer will have to maintain F-1 status.

Second, since I am graduating this May, my F-status will expire at that time. The only way for me to stay in status “after graduation and before the adjustment-of-status interview” seems to be OPT. Is that right? Are there any other options other than OPT?

Once you apply for AOS, you will not have to maintain F-1 status (through OPT or otherwise). You can, however, apply for OPT anyway - before you apply for AOS. Because as you are applying for AOS, you can apply for AOS work permit, so getting OPT work permit right before that seems like a waste of money. But you could still do it. Some students prefer to "keep" F-1 status all the way till they adjust - just in case something happens and they cannot get a GC, theoretically they then fall back on F-1 status, but practically - how can they prove non-immigrant intent if they applied for a GC.

So, if you get married and apply for AOS before your current I-20 expires/your program of study ends, you will continually be in status. If you apply for AOS after your program of study ends, you may want to apply for OPT EAD to keep yourself in F-1 status until you apply for AOS.

If you want to theoretically keep F-1 status while your AOS is pending - keep working with OPT EAD, do not get AOS EAD and do not get an advance parole. Hopefully then, you'll adjust before OPT expiration, and if not - your F-1 status will end and you will be in AOS pending status till the interview.