Apply for OPT or not?

[abhishek101]

Hello Guys,

Me and my wife are trying to decide what to do any help in this matter would be very helpful:

I applied for my 485 before I got married hence my wife is not part of my EB3 application. I recently started my application in Eb2 and labor was approved. My lawyer is preparing my I-140 application.

My wife just finished her MS in December and has a Job Offer (she is on F1) so we are planning to file for her OPT, but it is quite possible that while we are waiting for her OPT approval my I-140 gets approved and we can file for her AOS with my GC application.

The problem If we file for her OPT now and file for her AOS in a month will it affect any of the applications (OPT or AOS)?

(while the easy choice would be to wait for AOS we are not sure the job company will wait for her that long. Also I work for a fortune 10 company so I cannot do much to speed up my GC process :( )

[raysaikat]

Hello Guys,

Me and my wife are trying to decide what to do any help in this matter would be very helpful:

I applied for my 485 before I got married hence my wife is not part of my EB3 application. I recently started my application in Eb2 and labor was approved. My lawyer is preparing my I-140 application.

My wife just finished her MS in December and has a Job Offer (she is on F1) so we are planning to file for her OPT, but it is quite possible that while we are waiting for her OPT approval my I-140 gets approved and we can file for her AOS with my GC application.

The problem If we file for her OPT now and file for her AOS in a month will it affect any of the applications (OPT or AOS)?


None will be affected. OPT is an extension of F1. So her status does not change when she applies for OPT; she remains on F1.

When she does submit her I-485, you should assume that her F1 status becomes invalid at that very moment. So at that point, she needs to start using EAD.

In other words, she will not be "on OPT" after submitting her I-485.

(while the easy choice would be to wait for AOS we are not sure the job company will wait for her that long. Also I work for a fortune 10 company so I cannot do much to speed up my GC process :( )

[abhishek101]

Thanks a lot for your reply, this makes it very clear.

So my wife has to leave her job the day she files for AOS and wait for the new EAD to come. (Or she can keep on working ?)

[raysaikat]

Thanks a lot for your reply, this makes it very clear.

So my wife has to leave her job the day she files for AOS and wait for the new EAD to come. (Or she can keep on working ?)

She should stop working after filing I-485 until EAD is received.

[hibworker]

While it is correct that one application will not affect the other, I am not sure that filing for I-485 invalidates any non-immigrant status that a person is holding including F1 OPT.
This is based on the fact that people can file I-485 and still use H1-B to work and travel.

[mohan517]

is concurrent filing not allowed (I140 & I485) . I believe it is, not sure though, check with your attorney

[raysaikat]

While it is correct that one application will not affect the other, I am not sure that filing for I-485 invalidates any non-immigrant status that a person is holding including F1 OPT.
This is based on the fact that people can file I-485 and still use H1-B to work and travel.

Filing I-485 invalidates F-1 status. It does not invaildate H1-B status. The key difference is that F1 status is predicated on the intent of non-immigration whereas H1-B is a dual-intent status. The moment someone files I-485, beyond any doubt that individual has expressed immigration intent, hence invalidating any VISA status that requires intent of non-immigration, including F1.

[hibworker]

She should stop working after filing I-485 until EAD is received.

Filing I-485 invalidates F-1 status. It does not invaildate H1-B status. The key difference is that F1 status is predicated on the intent of non-immigration whereas H1-B is a dual-intent status. The moment someone files I-485, beyond any doubt that individual has expressed immigration intent, hence invalidating any VISA status that requires intent of non-immigration, including F1.

I agree about the non-immigrant intent of F1 and that seeking a new F1 visa overseas, trying to enter US on F1 or changing status to F1 after applying for I-485 will be difficult if not impossible.

Having said that, applying for I-485 does not automatically invalidates F1 and associated OPT as long as the person is fulfilling all other requirements for F1. Here is a link from a law firm detailing this issue, in particular look at section 6(c) that deals with exactly this issue: Zhang - U.S. Immigration & Counseling Home (http://www.hooyou.com/f-1/140filing.htm)

I believe the link above will answer all questions that the original poster have.

Good luck!