Have opt EAD and 485 based EAD, do i need to switch?

[dashu 0]

HI all,

 

I am a student, and graduated this year, and applied OPT, while my OPT is pending, I got married ,and my husband has h1B, and we file 485 together. after filled 485, I received my OPT EAD, and started to use OPT EAD to work, but now, my 485 EAD got approved, that means I will have 485 EAD. 

my questions is:

1.Do I have  to switch to 485 EAD? or I can continue to use OPT?

2.if I switch to 485 EAD, can I go back to school for another master degree ? or when I go back to school, I have apply some other status?

 

Does any one has the experience and please share

Thank you.

 

[Danny10 14]

As I understand, you're on H4 now.

H4 holders get accepted to most schools, but you'll have to reach out to the school to confirm that.

The H4 EAD is not 100% safe. For now you can apply for a card or get it renewed. But a final decision is expected in Spring 2020. 

Keep your options open..

 

[dashu 0]

34 minutes ago, Danny10 said:

As I understand, you're on H4 now.

H4 holders get accepted to most schools, but you'll have to reach out to the school to confirm that.

The H4 EAD is not 100% safe. For now you can apply for a card or get it renewed. But a final decision is expected in Spring 2020. 

Keep your options open..

 

no. i am not on H4. I have OPT(F1) in hand, and AOS is pending. and will get 485 based EAD.

[Danny10 14]

Oops, got distracted. My apologies..

Yes, you are F1 and will change to H4 when the 485 gets approved. 

The latest one is what you should carry on you.

You can check with HR if they need the new one.

The expiration date probably varies by a month or so only. Hopefully you'll have the h4 before having to renew the ead.

 

 

[dashu 0]

4 hours ago, Danny10 said:

Oops, got distracted. My apologies..

Yes, you are F1 and will change to H4 when the 485 gets approved. 

The latest one is what you should carry on you.

You can check with HR if they need the new one.

The expiration date probably varies by a month or so only. Hopefully you'll have the h4 before having to renew the ead.

 

 

actually, as i know once 485 approved, i will get GC direclty ,and no H4. but anyway, thank you for you reply and i will check further to make it clear.

[AJCM 17]

Hi @dashu

As you have already mentioned, you have two choices before you.

 

1) keep your F1 OPT. You're liable to stay within the requirements of the F1 OPT program, meaning:

* you will need to keep your international student status in good standing

* you may only work in a designated position, appropriate for your practicum training/related to your degree of study.

* for practical purposes, you may not re-enter the country as an F1 (this status is designated as one with a non-immigrant intent visa. you have already demonstrated otherwise by initiating a 485)

 

2) work on 485-based EAD while in 485 is in process

* you may be viewed as having given up your F1 status if you violate the above.

* with 485-based EAD approved and in hand, you may work without restriction (not limited to practicum-related positions)

* with 485-based Advance Parole approved and in hand, you may re-enter the country while 485 is in process.

 

You may drop out of F1 status and 485 can still be approved. The main requirement is that you were in good standing as of application for 485 AOS.

If you drop out of F1 status and 485 is denied, you may be asked to leave the country or risk being considered out of status.

If you maintain F1 status and 485 is denied, you may remain in the country and continue your F1 studies.

 

Your husband is in a slightly different situation, as he is H-1B which is considered dual intent (non-immigrant/immigrant tracks both ok). In which case, he may continue to reenter the country under his current status regardless of whether he obtained 485-based AP (as long as he's with his H1-B employer).

Basic information here: https://citizenpath.com/faq/maintaining-status-after-filing-i-485/

 

[dashu 0]

28 minutes ago, AJCM said:

Hi @dashu

As you have already mentioned, you have two choices before you.

 

1) keep your F1 OPT. You're liable to stay within the requirements of the F1 OPT program, meaning:

* you will need to keep your international student status in good standing

* you may only work in a designated position, appropriate for your practicum training/related to your degree of study.

* for practical purposes, you may not re-enter the country as an F1 (this status is designated as one with a non-immigrant intent visa. you have already demonstrated otherwise by initiating a 485)

 

2) work on 485-based EAD while in 485 is in process

* you may be viewed as having given up your F1 status if you violate the above.

* with 485-based EAD approved and in hand, you may work without restriction (not limited to practicum-related positions)

* with 485-based Advance Parole approved and in hand, you may re-enter the country while 485 is in process.

 

You may drop out of F1 status and 485 can still be approved. The main requirement is that you were in good standing as of application for 485 AOS.

If you drop out of F1 status and 485 is denied, you may be asked to leave the country or risk being considered out of status.

If you maintain F1 status and 485 is denied, you may remain in the country and continue your F1 studies.

 

Your husband is in a slightly different situation, as he is H-1B which is considered dual intent (non-immigrant/immigrant tracks both ok). In which case, he may continue to reenter the country under his current status regardless of whether he obtained 485-based AP (as long as he's with his H1-B employer).

Basic information here: https://citizenpath.com/faq/maintaining-status-after-filing-i-485/

 

Thank you so much for your details explanation. I also checked the link you shared. it is very good.

 

but now I have some concern: if I keep using my OPT, will it bring any risk to my 485 approval?  for example, in the GC interview, if they asked my work and EAD used , what if I tell them I use OPT?  i don't know if then will ask this, but I am just thinking. this is the thing that I concerned very much. not sure if any one have the same experience . 

 

another thing , I am sure if you know, I am just asking here. if I use OPT, can I apply H1B through change of status in US ? or if use 485 EAD, can I apply H1B in through change of status in US? I am just thinking to have a backup if 485 got denied for the worst case.

 

[gramercygreen 34]

2 hours ago, dashu said:

but now I have some concern: if I keep using my OPT, will it bring any risk to my 485 approval?  for example, in the GC interview, if they asked my work and EAD used , what if I tell them I use OPT?  i don't know if then will ask this, but I am just thinking. this is the thing that I concerned very much. not sure if any one have the same experience . 

 

another thing , I am sure if you know, I am just asking here. if I use OPT, can I apply H1B through change of status in US ? or if use 485 EAD, can I apply H1B in through change of status in US? I am just thinking to have a backup if 485 got denied for the worst case.

 

 

(1) There should be no risk for your AOS while using OPT. Just don't violate the terms of your OPT, or you're going to have to use the EAD from your AOS.

(2) Not sure what you mean by "apply H1B through change of status".

(3) If you use the EAD from your AOS, you will lose your underlying F-1 status. In this case, if your AOS is denied, you will be out of status and will have to leave the country. In the worst case, it is best to stick to the OPT, since you can remain on the OPT even if you are denied the AOS so long as you maintain the F-1/OPT.

Edited December 13, 2019 by gramercygreen

[AJCM 17]

@dashu in general, it should be possible to apply simultaneously for a permanent resident application and a H1-B. However, from the information you gave, it appears that you and your husband already have an approved I-140 and are at the I-485 stage. Theoretically, you are already in queue for the GC interview and will have a definite timeline before you.

 

At this time, you may wish to consult an immigration attorney who has experience in employment-based filings and advise you of the practicality, as well as the pros and cons, of participating in the next H1-B lottery with an existing/pending I-485, given your individual situation (field office timelines, etc.)

Edited December 13, 2019 by AJCM

[dashu 0]

On 12/13/2019 at 2:44 PM, AJCM said:

@dashu in general, it should be possible to apply simultaneously for a permanent resident application and a H1-B. However, from the information you gave, it appears that you and your husband already have an approved I-140 and are at the I-485 stage. Theoretically, you are already in queue for the GC interview and will have a definite timeline before you.

 

At this time, you may wish to consult an immigration attorney who has experience in employment-based filings and advise you of the practicality, as well as the pros and cons, of participating in the next H1-B lottery with an existing/pending I-485, given your individual situation (field office timelines, etc.)

Thank you for your reply.  yes, we are just waiting for GC interview.  as my attorney told me that I cannot use OPT for work any more as long as I file 485, and have to user 485 EAD once approved.  but I consulted with some other attorney for my situation, someone give the same answer, but also many attorneys told me that I can continue using OPT for work till I get green card, if my 485 got denied for the worst case, I can still use OPT. that is why I am so confused, and want to ask here and see if anyone has the similar experience. 

 

I hope to continue to use OPT to have a safe backup option for the worst case that 485 got denied . but till now , I got different clarification which makes confused.  

[dashu 0]

On 12/12/2019 at 10:44 PM, gramercygreen said:

 

(1) There should be no risk for your AOS while using OPT. Just don't violate the terms of your OPT, or you're going to have to use the EAD from your AOS.

(2) Not sure what you mean by "apply H1B through change of status".

(3) If you use the EAD from your AOS, you will lose your underlying F-1 status. In this case, if your AOS is denied, you will be out of status and will have to leave the country. In the worst case, it is best to stick to the OPT, since you can remain on the OPT even if you are denied the AOS so long as you maintain the F-1/OPT.

Thank you for your reply. "apply H1B through change of status" means apply the H1b in US and activate H1B status through change of status, and don't need to leave us for stamping to activate h1b.

I already got the answer for this from some attorney, I can share here.

1. if I use OPT, I can apply h1b in US , and change the status to h1b without leaving US. only when one day I leave US and want to come back, and need to go to US embassy for stamping . I think you already know this. 

2. if I use 485 EAD, then I can submit H1B application in US, but if want to activate my H1B , I have not leave US and go to US embassy in other countries for stamping, and then come back to US with H1B.

 

your  third point is same as what I am thinking, but my attorney told me that I cannot use OPT for work any more as long as I file 485, and have to user 485 EAD once it is approved.  I consulted with some other attorney for my situation, someone give the same answer, but also many attorneys told me that I can continue using OPT for work till I get green card, if my 485 got denied for the worst case, I can still use OPT. that is why I am so confused and struggling with the question., and want to ask here and see if anyone has the similar experience.