Adjustment of Status for F-1 OPT student based on marriage to US citizen

[MCG 0]

Hello,

Me and my husband got married on 2nd Feb 2013 and now we are looking to file for greencard for me. My husband is a US citizen and I am on F-1 OPT.

My F-1 visa has expired in June 2012 and currently I am on Optional Practical Training (OPT) - STEM extension status and working and staying in US.

Me and my husband knew each other 6 months before we got married in a simple small ceremony at his apartment with his family.

Has anybody filed for greencard while being on F-1 OPT status? I need to know which documents to file for greencard?

Also if I file for I-765 (employment authorization) what happens to my current employment authorization(OPT card). When I file for greencard what happens to my current status in US.

Can somebody please help me with this questions. The important question that I did not find answer to on this website is:

1. What happens to my current employment authorization (OPT) and status in USA once I apply for greencard.

2. Can I keep working on my current work permit while I wait for greencard and EAD card through greencard.

I will appreciate detailed responses.

Thank you.

[milimelo 4,481]

Moving to AOS from tourist, student, work visa.

[newacct 688]

Hello,

Me and my husband got married on 2nd Feb 2013 and now we are looking to file for greencard for me. My husband is a US citizen and I am on F-1 OPT.

My F-1 visa has expired in June 2012 and currently I am on Optional Practical Training (OPT) - STEM extension status and working and staying in US.

Me and my husband knew each other 6 months before we got married in a simple small ceremony at his apartment with his family.

Has anybody filed for greencard while being on F-1 OPT status? I need to know which documents to file for greencard?

Also if I file for I-765 (employment authorization) what happens to my current employment authorization(OPT card). When I file for greencard what happens to my current status in US.

Can somebody please help me with this questions. The important question that I did not find answer to on this website is:

1. What happens to my current employment authorization (OPT) and status in USA once I apply for greencard.

2. Can I keep working on my current work permit while I wait for greencard and EAD card through greencard.

I will appreciate detailed responses.

Thank you.

You file like any other spouse of U.S. citizen adjusting in the U.S.: I-130, I-485, and probably I-765, I-131. Filing from F1 is very common. See the VJ guide http://www.visajourney.com/content/i130guide2

Yes. Your OPT employment authorization continues to be valid until it expires at the end of your OPT, as long as you don't violate its conditions (90 days max unemployment, cannot work outside major, etc.). Once you get your new EAD and/or your green card, you can work without restrictions.

[FinnAlb 0]

Hi MCG,

I was in your situation 2 years ago and I honestly don't remember all the twists, but here are my package cover showing all the things that I filed (personal info taken off of course). You should obviously do your research in case something has changed, but these were filed in 2011.

Cover for I-485

1. Form I-485

2. Money order ($985 + Biometrics: $85)

3. My name

a. Copy of Birth Certificate and 2 passport-size photos

b. Copy of Passport with I-94 and Visa

c. Marriage Certificate

4. Medical Examination Report in a sealed envelope

5. Form G-325A + attachment (My name)

6. Affidavit of Support (I-864)

a. Form I-864

b. Federal Income Tax Return (1040): 2008. 2009. 2010

c. W-2: 2009, 2010

d. Pay Stubs: Wife’s work 10/03/2010 – 01/21/2011

e. Bank Statement showing the salaries paid to wife since 05/02/2010

f. Letter from the employer: Verification of employment

7. Form G-1145: To receive e-notification of application acceptance

I-765

1. No application fee, since filed concurrently with I-485

2. Form I-765

3. Copy of My previous EAD

4. Two passport-size photos

I-131

1. Form I-131

2. Copy of NYS Driver License

3. Copy of EAD

4. Explanation of my qualification for advance parole document

Cover for I-130

1. Form I-130

2. Money Order ($420)

3. Wife (Proof of U.S. citizenship)

a. Copy of Birth Certificate

b. Copy of Passport (all the pages)

4. Proof of Family Relationship

a. Copy of Marriage Certificate

b. Form G-325A with a passport-size photo (me)

c. Form G-325A + attachment with a passport-size photo (wife)

d. Evidence of Bona Fides of Our Marriage

i. Number of photos from the past

e. Our past two leases with both of our names on them

f. Bank Statements showing our join account information

g. Affidavit (name) letter confirming our relationship

Hope this helps. Good luck with your filing! I got my conditional green card in 2011 and just filed I-751 to get the conditional status removed.

[MCG 0]

Junior Memeber,

Thank you very much for you in depth reply. I am gathering the documents and trying to post AOS soon. But it is not a easy work.

Would you possibly have the cover letter that you sent for the packages of 130, 485, 131 and 175? I would appreciate if you can share them by removing or blacking out you personal information to protect the privacy

[FinnAlb 0]

Hi MCG, sorry for a very late reply, hadn't check back for a while.

Actually, those are the covers for I-130 and I-485, the only thing I had on the cover besides the list was my name and the name of the package. So like this: FirstName LastName: Petition for I-485.

I-131 and I-175 were part of the I-485 package, so I didn't have a separate cover for those.

Hope this helps and isn't too late for you. I know it's a frustrating process of getting everything together, so good luck! You'll get there!

[Leo7777 243]

You file like any other spouse of U.S. citizen adjusting in the U.S.: I-130, I-485, and probably I-765, I-131. Filing from F1 is very common. See the VJ guide http://www.visajourney.com/content/i130guide2

Yes. Your OPT employment authorization continues to be valid until it expires at the end of your OPT, as long as you don't violate its conditions (90 days max unemployment, cannot work outside major, etc.). Once you get your new EAD and/or your green card, you can work without restrictions.

Here is an exact opposite answer:

Q: After applying for Adjustment of Status (AOS) for green card, I got a different alien number than my previously received F-1 OPT EAD card, will it affect my OPT and job status? Is my OPT EAD card still valid?

A: When you applied for AOS, you should have also submitted I-765 to get ANOTHER EAD card for you to work in America while your AOS application is pending. The reason for this is not only because it is free to get another EAD card, but once you apply for AOS, or any other immigration status, your current visa/immigration status is revoked. That means your previous F-1 visa is now invalid, your OPT EAD card is also invalid, because you are adjusting out of that status. Therefore, once you apply for AOS, you must stop working under your original EAD card from your OPT authorization and begin working on the AOS EAD card. Continue working on the OPT EAD card and associated alien number is not technically legal however I believe they do give a little bit of grace period until you get your AOS EAD card and permanent alien number.

[newacct 688]

Here is an exact opposite answer:

Q: After applying for Adjustment of Status (AOS) for green card, I got a different alien number than my previously received F-1 OPT EAD card, will it affect my OPT and job status? Is my OPT EAD card still valid?

A: When you applied for AOS, you should have also submitted I-765 to get ANOTHER EAD card for you to work in America while your AOS application is pending. The reason for this is not only because it is free to get another EAD card, but once you apply for AOS, or any other immigration status, your current visa/immigration status is revoked. That means your previous F-1 visa is now invalid, your OPT EAD card is also invalid, because you are adjusting out of that status. Therefore, once you apply for AOS, you must stop working under your original EAD card from your OPT authorization and begin working on the AOS EAD card. Continue working on the OPT EAD card and associated alien number is not technically legal however I believe they do give a little bit of grace period until you get your AOS EAD card and permanent alien number.

Well that answer is wrong.

[Leo7777 243]

Well that answer is wrong.

Here are two short examples that show the alternative view.

How can we know which 'answer is wrong?'

Has anyone gotten written clarification from Feds on this ?

= = = = =

here are alternative answers I have seen elsewhere.

. . . . but once you apply for AOS, or any other immigration status, your current visa/immigration status is revoked. That means your previous F-1 visa is now invalid, your OPT EAD card is also invalid, because you are adjusting out of that status. Therefore, once you apply for AOS, you must stop working under your original EAD card from your OPT authorization and begin working on the AOS EAD card.

= = = = = =

Keep in mind though, once you file, you are no longer in F-1 visa status and therefore your OPT is invalid. You have to wait until you get the EAD card with your AOS application to work.

[newacct 688]

Here are two short examples that show the alternative view.

How can we know which 'answer is wrong?'

Has anyone gotten written clarification from Feds on this ?

= = = = =

here are alternative answers I have seen elsewhere.

. . . . but once you apply for AOS, or any other immigration status, your current visa/immigration status is revoked. That means your previous F-1 visa is now invalid, your OPT EAD card is also invalid, because you are adjusting out of that status. Therefore, once you apply for AOS, you must stop working under your original EAD card from your OPT authorization and begin working on the AOS EAD card.

= = = = = =

Keep in mind though, once you file, you are no longer in F-1 visa status and therefore your OPT is invalid. You have to wait until you get the EAD card with your AOS application to work.

There isn't necessarily going to be any law or regulation that says "X doesn't terminate your current status", because that's the default behavior without saying anything -- a status that hasn't otherwise expired or hasn't been violated does not terminate unless something explicitly says it is terminated. If you believe that submitting an application for (not approval of) AOS (or COS or whatever) does terminates your current status, the burden is on you to find a law or regulation that says this. From my experience, there is no such law or regulation. And in fact, people often strive to preserve their nonimmigrant status during AOS "in case" their AOS is denied.

Edited October 28, 2014 by newacct

[Leo7777 243]

I posted my question on a Legal Help Website:

Three different Immigration Attorneys answered as follows:

1) Filing for adjustment does not terminate your student status. Your employment authorization will remain valid if you otherwise do not violate your student status.

2) You remain on F-1 visa until the time a decision is made on your adjustment to permanent resident. If denied you remain on F-1, if approved you become a green card holder.

3) You can continue working on your current EAD until the end of it or your status is adjusted whichever comes first. You can also ask for a new one in the process of AOS.

So if this were a three or four game series, it would seem we have a winner.

However, since current World Series is best 4 of 7; perhaps we need to wait for one more game.

[Leo7777 243]

4. You remain in your current status until it expires or until you receive adjustment of status, whichever is earlier. If your current status expires before your I-485 is adjudicated, it will not disqualify you from adjusting status and you will not be considered accumulating unlawful presence - unless your I-485 gets denied, in which case you will be considered an overstay from the date of expiration of your F1-OPT. You can continue working with your OPT employment authorization card until it expires (or until you receive a green card and no longer need an EAD to work). You should also file I-765 application for employment authorization with I-485: this way, you don't have to pay the I-765 filing fee, and, in about 3 months from filing, you will receive a new EAD bearing the "adjustment of status applicant" codes. It will be valid for a year, can be extended if your I-485 will remain pending 9 months from now; and you can use it either right away - or after your OPT EAD expires. A bit of advice: if USCIS does not call you in for an adjustment interview by the time when you will have only a couple of months left of your OPT, or if you have some other reasons to doubt that your adjustment of status will be granted before your current status expires, talk to an immigration attorney about a possibility to extend your F1/OPT status or to change it to something else - to keep you in status regardless of the outcome of the adjustment process.

[MACYS 0]

I am also a F1 student. I am finishing my studies in December 2015 and allowed to apply for OPT now. However, I can file (I-485, I765) as well. My questions is whether I will be able to apppy for OPT and also the EAD through the adjustment of status. Has anyone have had this expereince? Would both EAD card be processed?

My question is:

1. Can I appply for both EAD card simultaeously? Apply through school (OPT) and Apply through I-485?

Help will be greatly appreciated

[Leo7777 243]

I am not sure if you could apply for both at once. But I think it would not be wise to do so.

My advice below will guarantee you the longest stay possible in USA.

1. Apply for OPT. It is fairly automatic to get approval. You can then work for 12 months. If you are in a STEM area, you can get a 17 month extension.

2. Then, after OPT done (or actually 90 days before it is done), file the 485 paperwork. You will get your new EAD card good for 12 months while AOS is being processed.

Now, why do I think this better than filing for 485 right now?

Because there is some chance you will be denied and will only be able to stay in USA about year.

This is compared to the 2 to 3 and a half years you could stay in USA by going the OPT first followed by 485 second.

But, of course, there could be some flaw in my thinking, which would make for the first mistake in my life. :-)

[MACYS 0]

Thank you for the prompt reply Leo.

What do youu think about this: I apply for OPT to start in February 2016 and In 2-3 months (december -January) I apply for (I485, 765) or until my OPT gets approved. Will this be sound?

Also, I dotn mean to be rude or anything like that but what are your sources from? Are you studying paralegal?

Thank you again for your thinking