FAQ Series I: The Impact of I-140/I-485 Filing on F-1 Students

We have received many inquiries regarding the impact of I-140 or / and I-485 filing on F-1 status. In order to help those F-1 students having questions and concerns about filing I-140 /I-485, we provide you with this FAQ. It addresses the impact of filing I-140 and / or I-485 petitions on maintaining F-1 status, the application of OPT and the application of H-1.. It also discusses the issues of nonimmigrant intent requirements in connection with applying F-1 visa abroad and maintaining F-1 status within the United States.

1. Can an F-1 student file I-140 petitions like NIW or EB-1?

Yes. NIW and EB-1A immigration petitions do not require employer sponsorship.  Therefore, they are viable immigration options for F-1 student.  

2. Can an F-1 student apply I-140 and I-485?

Yes.

3. If an F-1 student applied I-140, does it affect his/ her student status?

Answer: No.

4. I am in OPT, may I apply I-140?

Yes. OPT is also in F-1 status, and you can apply I-140.

5. I am in OPT, may I apply I-140 and I-485?

Yes.

6. I am in OPT, does my application of I-140 affect my future application of H-1B?

No. H and L visa/status allow "dual intent", which means that a person may choose to return to the home country or may choose to move to permanent residency status in the U.S. Filing I-140/I-485 shows an alien’s immigrant intent, but it doesn’t influence your future application of H-1B.

7. I am in OPT, does my applications of I-140 and I-485 affect my future application of H-1B?

According to our experience, filing I-140/I-485 will not impact your eligibility for H-1B.

8. I am in OPT, does my application of I-140 invalidate my OPT?

No. OPT is still under F-1 status, and application of I-140 doesn’t change your F-1 status.

9. I am in OPT, does my application of I-485 invalidate my OPT?

No. USCIS takes the position that the OPT EAD may still be valid after filing I-485.

10. I am in F-1 status and will graduate in one year. Does my application of I-140 affect my future application of OPT?

No. If, however, in the unlikely situations that the school/consular officer does ask you whether you have filed an I-140 and/or I-485, you will have to disclose that fact. If this happens, it is highly unlikely that you will be able to obtain an EAD based on OPT.

11. I am in F-1 status and will graduate in one year. Does my application of I-485 affect my future application of OPT?

Yes, it is possible. The USCIS takes the position that an application of I-485 makes the F-1 student ineligible for OPT.

12. I am in F-1 status and applied I-485, EAD and Advance Parole. However, I have not used my EAD or Advance Parole.

Does my application of EAD or Advance Parole invalidate my F-1 status?

USCIS has an unofficial comment that it may consider an F-1 holder has abandoned his/her F status after filing I-485. However, according to our practice, after filing I-485, F-1 holders do not have problem to change to H status.

If I used EAD or Advance Parole, do I still have an F-1 status?

No. You are in a parolee status.

13. I am in F-1 status and have applied I-140. May I travel outside the US?

Yes. You may leave the US.

How do I come back?

You will need to apply a visa at the US Consulate abroad.

Does my application of I-140 affect my chance to get an F-1 visa?

Yes, since your immigrant intent is shown by your I-140 application. There is a high chance your new F-1 visa application will be rejected because of the immigrant intent.

14. I am in F-1 status and have applied I-140. I have a valid F-1 visa. May I leave the US and come back the US by using my valid F-1 visa?

Yes, you may leave the US. Yes, you may apply an entry into the US with the valid F-1 visa. However, the USCIS officer at the border may deny your entry if he/she finds that you applied an immigration petition, as the application demonstrates your immigrant intent.

15. I am in F-1 status and plan to apply I-140. What applications or status does my I-140 affect?

Your application of I-140 will affect 1) your chance to apply F-1, F-2, B-1, B-2, J-1, and J-2 visas; 2) your entry into the US as F-1, F-2, B-1, B-2, J-1 and J-2; and 3) your chance to change your status in to the US to F-1, F-2 B-1, B-2, J-1 or J-2; 4) your chance to get an I-20 extension. That’s because all these visas and status do not allow the alien have immigrant intent. For I-20 extension, the form contains an attestation of no immigrant intent, but your I-140 application has already demonstrated the immigrant intent.

What does it not affect?

Your application of I-140 does not affect: 1) your current F-1 status; 2) your application of OPT (in most cases); and 3) your application of H-1.
 
16. I am in F-1 status and plan to apply I-485. What applications or status does my I-485 affect?

Your application of I-485 will affect 1) your chance to apply F-1, F-2, B-1, B-2, J-1, and J-2 visas; 2) your entry into the US as F-1, F-2, B-1, B-2, J-1 and J-2; and 3) your chance to change your status in to the US to F-1, F-2, B-1, B-2, J-1 or J-2; 4) your chance to apply OPT; and 5) your chance to get an I-20 extension.

What does it not affect?

Your application of I-485 may not impact your future application to H-1 status or H-1B visa application.
  
17. I am in F-1 status and plan to apply I-140, I-485, EAD and Advance Parole. If I use EAD or Advance Parole, what is my status?

You are in parolee status.

Is parolee a valid non-immigrant status?

No. It is a legal stay pending your I-485.

18. If I use EAD or Advance Parole and my I-485 is denied, can I stay in the US legally?

No. You will be out of status. When you use EAD or Advance Parole, you lose your F-1 status. If your I-485 is denied, you will be out of status.

19. I would like to apply I-140 and I-485. What do you suggest me as far as my status is concerned?

I would suggest you extend your I-120 form to the most possible expiration date before fling I-140 and I-485. Please do not use your EAD or Advance Parole until your I-140 is approved.

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Zhang & Associates attorneys have always maintained high standards in our commitment to serve our existing clients. Since the recent changes in the availability of visa numbers as announced by USCIS on 6/13, our firm has experienced a very significant surge in case intake. In order to concentrate our efforts and time to provide high quality work for our existing clients, the firm has decided to temporarily suspend all case intakes starting from June 20, 2007. This policy will be in place until further notice. However, we will be continuing to update our website (www.hooyou.com) frequently with articles regarding recent immigration developments and their appropriate legal interpretations.

In order to better serve our existing clients, managing attorneys Jian Joe Zhou and Jerry Zhang will hold an Open Phone Line Question and Answers Session for our existing clients on every Saturday from 9:00 am to 6:00 pm CST until further notice of change. Please call the toll-free number (800) 230-7040 for this service. For more detail, please click here http://www.hooyou.com/news/news062007phone.html

(06/23/2007)

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