Do you need to maintain your status during I-485 decision process

[Maya123 0]

My current case situation scenario is as below:

I was in F1 status when I married my husband who is a permanent resident (Green card) holder.

My F1 Status was valid till December 5, 2013 under OPT (Optional Pratical Training).

My husband filed for my I-130 in August 6, 2013 and got approved on Dec 3, 2013.

I filed my I-485 on September 17, 2013. I received my EAD card on November 12, 2013.

We were called in for I-485 interview on January 16, 2014.

The immigration officer who interviewed asked us relationship questions which went well. He then asked me about my status and I told him I have my OPT valid till December 5, 2013 and now have my EAD card.

He told us that even though I was not in status right now I still have the 180 day grace period within which he needed to get my I-130 from another office in Chicago, which may take 2 weeks and he would approve my case.

He later called me and said that since I am out of status from December 5, 2013 my case will be denied. I was in status before my I-130 was approved. We tried to explain everything to him but he did not buzz.

Do I still have to maintain my status during the I-485 decision process?

Is there any other way I can re-appeal my case or to get my case approved?

Please help me find a right solution. I will greatly appreciate your time and advice.

Thank you.

[mngoalie 10]

From my understanding, since he's a LPR and not a USC, you do have to remain in status. I don't know if there's any appeal you can use at this point, other than return to your home country and file for a spouse visa (CR-1)

[Hypnos 6,578]

Filing an I-485 places you in a new period of authorised stay which persists until your application is adjudicated.

I believe that, since you filed your I-485 two months before your OPT ended, you are deemed to be in status.

You should consult with an experienced immigration attorney, and may want to post over at http://www.avvo.com to get clarification from an attorney (for free).

Please post back here once you have a definitive answer, I'd be interested to see how it all turned out and whether my surmise was correct.

[aleful 1,905]

hi

I might be wrong about this, but this is the normal process.

you shouldn't have filed for adjustment of status in the US since you currently don't have legal status, overstay isn't forgiven for spouses of LPR only for spouses of USC

for spouses of residents to file adjustment of status here, you must remain legally in the country until you have your interview and you are approved

as said, consult an attorney

Edited January 17, 2014 by aleful

[Hypnos 6,578]

you shouldn't have filed for adjustment of status in the US since you currently don't have legal status, overstay isn't forgiven for spouses of LPR only for spouses of USC

She had no overstay. She was in status on F-1 OPT until December 2013 and filed her I-485 in September 2013.

[aussie_jason 195]

She had no overstay. She was in status on F-1 OPT until December 2013 and filed her I-485 in September 2013.

Going by the guide at : http://www.uscis.gov/sites/default/files/USCIS/Resources/B1en.pdf

Can my relative wait in the United States until he or she can become a permanent resident?

No. Your relatives approved petition gives your relative a place in line among those waiting to immigrate. It does not give permission for your relative to live or work in the United States while he or she is waiting to apply for permanent residence. If he or she enters or stays without legal status, it will affect his or her eligibility to become a permanent resident upon reaching his or her place in line for issuance of a visa.

However it isn't clear once you apply for an I-485 if you are then ok or not.

[Hypnos 6,578]

A pending I-485 grants you legal status, a pending I-130 doesn't, which is what that's referring to.

Edited January 17, 2014 by Hypnos

[KayDeeCee 4,896]

~ Moved from AOS from Family Based Visas to Bringing Family Members of Permanent Residents to America ~

[kzielu 1,154]

A pending I-485 grants you legal status, a pending I-130 doesn't, which is what that's referring to.

That's actually interesting point - does it really, if there no "immediately available visa number" since PD for F2A petition is not current ?

[NigeriaorBust 4,087]

Using that theory a sibling of a USC could come in a student visa send in an I130 and an I485 and create legal status until a priority date becomes available 12 years later. You can't submit the I485 until the visa number is available.

[john.smith 5]

if i-485 was filled while the visa number was CURRENT, the person can wait inside within the states. no need to maintain your initial status. this is not possible when the category - visa number is not current - in that case it is mandatory to maintain the status since it is not possible to file I-485 while the category is not current and later on illegal presence will not be forgiven for non-immediate relatives = people limited by number of available immigration visas - green cards.

Edited January 17, 2014 by john.smith

[john.smith 5]

My current case situation scenario is as below:

I was in F1 status when I married my husband who is a permanent resident (Green card) holder.

My F1 Status was valid till December 5, 2013 under OPT (Optional Pratical Training).

My husband filed for my I-130 in August 6, 2013 and got approved on Dec 3, 2013.

I filed my I-485 on September 17, 2013. I received my EAD card on November 12, 2013.

We were called in for I-485 interview on January 16, 2014.

The immigration officer who interviewed asked us relationship questions which went well. He then asked me about my status and I told him I have my OPT valid till December 5, 2013 and now have my EAD card.

He told us that even though I was not in status right now I still have the 180 day grace period within which he needed to get my I-130 from another office in Chicago, which may take 2 weeks and he would approve my case.

He later called me and said that since I am out of status from December 5, 2013 my case will be denied. I was in status before my I-130 was approved. We tried to explain everything to him but he did not buzz.

Do I still have to maintain my status during the I-485 decision process?

Is there any other way I can re-appeal my case or to get my case approved?

Please help me find a right solution. I will greatly appreciate your time and advice.

Thank you.

you know what. this can be tricky because your spouse is a LPR. not all statuses can be adjusted thru F2A, which is not the case for spouses of us citizens. why i say that? for example, it is not possible to adjust your status from VWP thru F2A but it is possible for spouses of us citizens, not spouses of LPRs.

What was your status when you filled I-485? What was your status on the day of your priority date? If you were on OPT when you filled I-485 (even thought the F2A was current) you might not be able to adjust your status, since for some statuses it is not possible to be adjusted thru F2A.

read this carefully http://www.uscis.gov/sites/default/files/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-38239/0-0-0-38252.html

you should find the answer were you able to file I-485 while on OPT thru F2A.

Edited January 17, 2014 by john.smith

[Hypnos 6,578]

Using that theory a sibling of a USC could come in a student visa send in an I130 and an I485 and create legal status until a priority date becomes available 12 years later. You can't submit the I485 until the visa number is available.

You are mistaken.

No they cannot, since, as stated, the priority date must be current if you are filing an I-485 based on an I-130 which is family preference instead of immediate relative.

F2A was current in September, hence there were many people who probably filed their F2A I-485 at that point if they were already legally present in the US.

Edited January 17, 2014 by Hypnos

[john.smith 5]

You are mistaken.

No they cannot, since, as stated, the priority date must be current if you are filing an I-485 based on an I-130 which is family preference instead of immediate relative.

F2A was current in September, hence there were many people who probably filed their F2A I-485 at that point if they were already legally present in the US.

It was not enough to be legally present in the states while f2a was current. as i stated already, not all statuses were possible to adjust.

[Hypnos 6,578]

F-1 can.