Adjustment of Status(OPT to Green Card) through Marriage US citizen

[Leo7777 243]

Pickle, here is an example of the opposite opinion of yours:

Q: I am an F-1 visa holder on OPT. My OPT began Jan 25th, and it gives me 3 months to find a job. I have been with my US-citizen girlfriend for a long time and we are planning to get married. When is not a problem we can get married tomorrow if need be. But I am worried about gaining permanent residence status specifically, I worry that I have left it too late, and that I may have to leave the country, even if we get married (under the assumption that I am unable to find employment). Can anyone tell me the process here? If my OPT expires April 25th, and I were to get married, say, tomorrow, what forms would I need to file? Would I be able to stay in the country until these forms are processed, even beyond April 25th?

A: There is nothing to worry about. As long as you file the I-485 for Adjustment of Status (along with all other necessary forms), and this was received by the USCIS and is under review, you can technically be in a limbo status where even if your OPT has expired or F-1 visa has expired, it is legal to remain in America while your AOS is pending. Therefore, file the AOS application and just wait. 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.

[bobcat190E 12]

That can't be correct.

I just filed for AOS from a J-1. My J-1 is connected to my job as a researcher at a university. By this account, as soon as I filed AOS, I was working illegally at my university until my EAD card came 2 months later. That makes no sense.

[bobcat190E 12]

Also, see this:

http://www.hooyou.com/f-1/140filing.html

Basically, the website states that filing for AOS has no real effect on any underlying F-1 visa.

[Leo7777 243]

That can't be correct.

I just filed for AOS from a J-1. My J-1 is connected to my job as a researcher at a university. By this account, as soon as I filed AOS, I was working illegally at my university until my EAD card came 2 months later. That makes no sense.

Bobcat, I am not contending which of the alternative answers I have seen are true.

I am searching for definitive answers.

Under one answer, you were working illegally until the new EAD card came.

It is commonly true that laws often do not make sense; but that does not mean that the law is not true.

Also, just because (I presume) you were caused no trouble; does not mean that by law what you did was illegal.

Just like running through a red light when no one notices doesn't mean the red law is void.

Again, I am not trying to harass you or anyone . . . just trying to figure this out. :-))

[bobcat190E 12]

That link I just posted sets it out fairly clearly.

Merely applying for adjustment of status does nothing to your underlying status. It is a common misperception (which I have seen posted here frequently) that it somehow "cancels" your underlying status. That is not true.

Nothing about your current status changes until a determination is actually made on your application for adjustment. if it is granted, then your F-1 is canceled and replaced with a green card. If it is denied, you revert to the F-1 status. The limbo would arise if you were denied adjustment, your F-1 (or OPT) expired and then you reapplied for F-1 (or OPT): USCIS would have good grounds for denying it because the previous attempt at adjustment of status clearly showed intent to immigrate.

[Leo7777 243]

Also, see this:

http://www.hooyou.com/f-1/140filing.html

Basically, the website states that filing for AOS has no real effect on any underlying F-1 visa.

Bobcat, I have read the website you posted, and I am not getting the same interpretation that you posted.

When you mention the F-1 visa, that is more of an issue related to the legal status of the person being in the USA.

Many posting here have stated that once AOS is filed after marriage to US Citizen, many different types of previous status problems are forgiven. i.e. People have been in country illegally for many years, have overstayed tourist visa, F-1 visa etc.

However, my question is not about the ability to legally stay in USA after filing AOS; but rather about legal ability to WORK in USA.

Some alternative answers that I have found strongly state that AOS will immediately cancel EAD from OPT program.

Again, looking for answers.

[Pickle 65]

See my post #4 here: http://www.visajourney.com/forums/topic/520367-does-aos-after-marriage-cancel-ead-from-f-1-opt-program/?p=7312105

[Pickle 65]

Bobcat, I have read the website you posted, and I am not getting the same interpretation that you posted.

I don't think you had to interpret anything. Read #3 under the heading "Some Practice Tips"

The filing of I-140 / I-485 should not affect an F-1 student to his/herunderlying-1 status in the United States. If the F-1 student remains in the United States and continues his/her full time studies, he/she should be fine because the filings of an immigration petition or an adjustment of status applications are allowed under the laws and there is normally no circumstance where he/she would be asked about the disclosure of filing the I-140 and/or I-485.

Also one thing I want to add is that you will get a lot of conflicting information. You can call USCIS twice in a 10 minute time frame, and then call a lawyer afterwards. Chances are you might get three different answers. So try to think logically what makes sense.

Edited October 28, 2014 by Pickle

[bobcat190E 12]

If the filing of AOS does not affect the underlying F-1 status, why would you think it affects OPT? OPT is directly connected to the F-1. Since the F-1 does not change, the OPT does not change.

[Pickle 65]

If the filing of AOS does not affect the underlying F-1 status, why would you think it affects OPT? OPT is directly connected to the F-1. Since the F-1 does not change, the OPT does not change.

Exactly.

[bobcat190E 12]

I think some of the confusion here about what happens to your underlying status arises from a confusion about the idea of immigrant intent.

It is true that when you apply for a non-immigrant visa, you are not allowed to have an intention to immigrate. That is, when you present yourself at the US embassy or consulate in your home country asking for a visa, you should not have in your mind the intention to immigrate. And if they ask you "do you intend to immigrate" and you say "yes," then that would be grounds for not giving you the visa. If you say "no" but do so intend, well there is no real way of them knowing since they cannot look inside your head and read your mind.

On the other hand, once you are in the US, you are allowed to change your mind about intention to immigrate. That logically follows from the very existence of the AOS process: it is a recognition that even though you had no intent to immigrate when you arrived, now you do, and you are allowed to request an adjustment in your status to reflect this.

The important issue, addressed in that link I posted above, is what happens to your non-immigrant visa (and any benefits attached to it, like OPT) when you file for AOS. Until a final decision is made on the matter of adjustment, the only thing that has changed is your intent (which you have signaled by filing for AOS). As long as you are otherwise correctly maintaining your status, the change of intention is not sufficient to invalidate your non-immigrant visa. This does appear to be a gray area, mostly because the actual law is silent on the matter, so here is the specific part of that linked website that deals with this:

Some attorneys may argue the laws require the F-1 student to have non-immigrant intent to maintain his/her status. However, some legal experts observe that such "non-immigrant intent" is inconsistent from a historic viewpoint and illogical from the spirit of law. If F students are allowed to have the intent to switch to H-status, and H-status allows for the intent to switch to LPR status, then isn't the desire to switch from F status to H status a strong indication that an alien intends to stay in the US and is therefore not eligible for the F status? Put differently, if F aliens can freely change to H status and H aliens can freely change to LPR status, then logically speaking F aliens should be allowed to freely change to LPR status.

Moreover, if assuming that the USCIS interprets the non-immigrant intent broadly to cover the maintenance of F-1 status, an F-1 status holder who has filed an immigration petition may argue that his filing of I-140 is a "law-afforded" action to test whether he can lawfully remain in the US permanently and his legitimate desire (not intent) as demonstrated by the I-140 filing therefore should not negatively impact his F-1 status quo. Since the first desire (filing the I-140) is authorized by law, a reiteration of the desire (filing the I-485) should invite nothing more than a second authorization.

Therefore, it is reasonable to conclude that "non-immigrant intent" can be interpreted differently under different scenarios and is applied differently for applying for F-1 visa outside the US and for maintaining F-1 status while in the US.

Edited October 28, 2014 by bobcat190E

[Pickle 65]

The important issue, addressed in that link I posted above, is what happens to your non-immigrant visa (and any benefits attached to it, like OPT) when you file for AOS. Until a final decision is made on the matter of adjustment, the only thing that has changed is your intent (which you have signaled by filing for AOS). As long as you are otherwise correctly maintaining your status, the change of intention is not sufficient to invalidate your non-immigrant visa.

Very well said.

[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.

[Pickle 65]

Thank you for posting the responses!