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How can an EB-5 applicant on an expired OPT extension stay in the U.S.?

My OPT extension expired on February 2015 and I received an I-797C regarding my I-526 application on January 15. I made an appointment with the local USCIS office to consult about whether I can legally stay in the United States right now. They told me that since my case is pending, I can stay in the United States within this period. Is this actually correct? I want to make sure, since I am still waiting for I-526 approval and I do not have another legal nonimmigrant status to support me. Will I legally be able to submit the I-485 once I get I-526 approval? At what point will I be considered as staying illegally in the United States?

Answers

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    Charles H Kuck

    Immigration Attorney
    Answered on

    You will not be able to file a I-485 when your priority date becomes current, as you are out of status, but you will be able to consular process, as you are not accruing any unlawful presence. For a detailed review of your case and actual legal advice, I strongly recommend consulting with an experienced immigration lawyer, and not the clerks at the front desk of an immigration office.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    It is not correct. You had a grace period of 60 days after the OPT ended to depart or enroll in another school to maintain your student status. The I-526 petition does not provide any status in the United States and you will not be eligible to file the I-485 assuming your I-526 is approved. If you have been in the United States out of status for more than 180 days after your OPT grace period expired, then you will have a three-year bar to return to the United States which is triggered upon departure from the United States. Exceptions would be to either adjust in the United States through an immediate relative (such as a U.S. citizen spouse) or if you were 245(i) eligible. Please consult an immigration attorney before you depart the United States.

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    John J Downey

    Immigration Attorney
    Answered on

    I would return to the USCIS office where they told you that you could stay while your I-526 is pending and ask for that to be in writing. I have received many oral opinions over the years only to find that they were incorrect and never could locate the person who gave me the info.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The advice you got is wrong. With only one day of out of status you are not eligible to adjust status. You fell out of status 60 days after the OPT ended.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    The I-526 application pending does not give you a status to remain in the United States - it is merely an immigration petition which, if approved, you will have the right to apply for the immigrant visa. I am not sure why your immigration lawyer did not advise you on how to maintain your status - by enrolling in another school program to continue your F-1 status by receiving a new I-20 - so you could stay in the United States legally. However, now that it has been expired for so long, even well beyond the 60-day grace period, you are formally out of status and you already are staying in the United States illegally. Because you are not in valid status, you will not be able to file the I-485 when your I-526 is approved. The only thing for you to do is to go out and consulate process in once the I-526 is approved.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    That was incorrect advice from USCIS. A pending I-526 does not allow you to remain in the United States. A pending I-485 would allow you to remain in the United States, but this cannot be filed until the I-526 is approved and will be denied because of your unlawful presence from February approximately until the present. You did have a 60-day grace period after your OPT expired, but you absolutely need to leave the United States prior to 180 days after the end of the 60 day grace period or you will have a three-year bar before you can return. The only exception to this is if you are 245(i) eligible through a petition filed prior to April 30, 2001 on your behalf or on behalf of one of your parents where you were a derivative.

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