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When should I apply to adjust my status through I-485 if I have a pending I-539?

I held a B1 visa and applied to change my status to F1 with I-539 application in July 2017. I am waiting for an answer about my I-539. At the same time, I am an EB-5 investor and my I-526 has just been approved. Could I apply to I-485 now, or must I wait for the answer of my I-539? If my change of nonimmigrant status is denied, could I stay in United States while waiting for my I-485 answer?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Your inquiry is complex and you need to analyze all details with an experienced immigration attorney in order to determine whether to file I-485 or consular process. You may file I-485 if your immigrant visa number is immediately available (your priority date is current) and you are in valid nonimmigrant status and admissible to the US. A pending change of status application is not a status but rather an authorized period of stay. If your underlying B status I-94 is still valid, file your I-485 and withdraw I-539.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you have never been out of status for even one day or worked without permission for one day you can apply to adjust status. While the filing of a nonfrivolous change of status may toll unlawful presence, since your B-status seems to have expired you may not be able to adjust. Discuss this with your counsel. Bar

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    Charles Foster

    Immigration Attorney
    Answered on

    If a visa number is currently available after the approval of your EB-5 Investor Petition on Form I-526, there are pros and cons, but you could apply now for your Adjustment of Status on Form I-485. The advantage of filing now is if you wait for the decision on your I-539 extension application and it''s denied you could find yourself out of status. If you file your Adjustment application while it is still pending, you have a better argument that you were in status as of the time you filed your I-485 application.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    If you have an approved I-526, you should pursue your I-485 even though your I-539 is pending. On the one hand, the I-539 addresses your non-immigrant application to be classified as F-1 academic student. On the other hand, the I-526 petition and the accompanying I-485 addresses your immigrant status. The two are mutually exclusive. Advisably, talk and work with an immigration attorney to see how you can bridge possible out of status that may arise which is your main concern.

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    Blake Harrison

    Immigration Attorney
    Answered on

    It depends on the country in which you were born. Generally, you can file the I-485 upon the approval of the I-526. However, investors born in China will need to wait for a visa to become available before filing the I-485 as there is currently a visa backlog for Chinese investors. Having an I-485 pending with USCIS generally allows you to remain in the U.S. while you await adjudication of the application.

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    Barbara Suri

    Immigration Attorney
    Answered on

    You should apply for your adjustment of status immediately, while you are still in legal status. That option may not be open to you if your I-539 is denied.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    You have an involved situation. You should obtain legal advice about this involved situation from the immigration attorney who filed your I-526 petition and who is representing you for your EB-5 case.

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    Tomas Resendez

    Immigration Attorney
    Answered on

    Assuming you were never out of status, you should file your I-485 as soon as possible. Again, assuming you were never out of status, if your I-539 is denied, but your I-485 is already pending, you may wait until a decision is made on your I-485 in the United States.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    You can apply for the I-485 without waiting for the decision on I-539. While the I-539 is pending you are in a lawful status in the U.S.; therefore, even if the I-539 decision is a denial, that would have no impact after your I-485 is filed.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    It is taking Vermont Service Center 10-12 months to adjudicate I-539. California Service Center is quicker. Despite the approval of I-539, when you file the I-485 based on an approved immigrant petition, such as I-526, you are giving up that non-immigrant status. Thus, I would just file the I-485 now.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    If your I-526 is approved, you may file your I-485 only if (1) there is an immigrant visa number immediately available (i.e., your priority date is current) and (2) you can demonstrate that you are in valid nonimmigrant status and otherwise admissible to the United States. You should consult with an immigration attorney to determine if you should wait for the change of status to be approved before you file your I-485. If your B-1 status has expired, you might want to consider waiting. If there is still time on your B-1, you might consider withdrawing the I-539 and filing the I-485.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    File your I-485 now.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    As long as there is no gap in status you may file now to adjust status. I would need to analyze the dates.

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    Mark AM Catam, Esq

    Immigration Attorney
    Answered on

    The answer is it depends. This is generally a very tricky question and all facts must be weighed. First, your I-539 change of status from B-1 to F-1 has been pending since July 2017? I would inquire on the status of the I-539 since it has been pending for quite a while. Second, if your B-1 status is still valid, note that you must not file I-485 within 90 days of your B-1 admission, otherwise, USCIS could hit you with immigrant intent. If you are past the B-1 status validity, you may have to wait for the F-1 approval since you need to be in a valid nonimmigrant status to file I-485. Third, you may want to consider consular processing instead of adjusting status in the U.S.

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