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What immigration application should I file after I-526 approval?

I am a senior at a university graduating in May 2015. My F-1 visa expires on May 15 and I have work starting on August 3. I filed for EB-5 and was notified last week that my I-526 petition was approved. My immigration consulting company in China suggests that I apply for OPT for now and apply for the I-485 afterwards, so I can secure work authorization by early August. But a U.S. immigration lawyer I consulted recommends that I apply for the I-485 immediately and that the OPT application will likely be rejected due to immigration intent. Between OPT and I-485 EAD, which one should I apply for now? My main priority is to get work authorization without any delay to work; the next priority is to get a green card; and the last priority is to go home and visit family in China during the summer.

Answers

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    Upon an approval of your I-526 petition, you are eligible to adjust your status in the United State by filing the I-485 application. With your I-485 application, you attach an application (Form I-765) for work authorization. USCIS is statutorily required to issue employment authorization (EAD) within 90 days and it usually takes three months for USCIS to issue an EAD for a pending I-485 applicant.

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    Lei Jiang

    Immigration Attorney
    Answered on

    You should file the I-485 immediately. Your OPT will more likely be rejected.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    As an immigration attorney, I would always recommend consulting with U.S. immigration attorneys to assist you with the process. If you apply to adjust now, you can also get employment authorization in approximately 90 days. Yes, you may need to delay work, but it is better to follow the immigration process properly.

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    J Bruce Weinman

    Immigration Attorney
    Answered on

    Provided you file all of the appropriate forms and documents, you will receive work and travel authorization within 90 days after filing for adjustment of status, unless there is an RFE, in which case it might slow down the process by a couple of weeks. That means if you file now, you should receive a travel authorized EAD in June. If you do not have to start working immediately in May and can wait until June, then you are better off filing for adjustment of status right now. As long as you are in status when you file the I-485, you are okay.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Work authorization is included in the I-485 package (it is Form I-765) and the filing fee is the same whether or not you ask for work authorization. The I-765 typically is processed within 90 days. Therefore, if you file now, you would have work authorization by June. OPT is not necessary. You should retain an experienced immigration lawyer so that you can be properly represented and all options can be explained to you.

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    Gregory Romanovsky

    Immigration Attorney
    Answered on

    Thank you for you inquiry. I would also suggest filing your I-485 as soon as possible. You can apply for temporary employment authorization at the same time and should have it in 2-3 months. Good luck.

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    John J Downey

    Immigration Attorney
    Answered on

    I would follow the advice of the immigration attorney and file for the I-485. The OPT may not be granted as you have already received verification of your intent for an immigrant visa. The processing of the visa could take place in China while you are at home. Visa processing takes time, so the sooner you start the better.

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    Oliver Huiyue Qiu

    Immigration Attorney
    Answered on

    If money is not an issue, you can file both applications for Employment Authorization Document (EAD), one under F-1 student's Optional Practical Training (OPT), and the other under I-485 (together with the I-485). They will be processed at different USCIS locations; therefore one might be faster than the other. Filing EAD under OPT will not conflict with the I-485.

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    James Zhou

    Immigration Attorney
    Answered on

    You shall apply for I-485, because an I-485 EAD will be approved in about two months.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    We usually advise our client to maintain their current status until the adjustment is approved. However, in your case, since the I-526 is already approved, your I-485 also should be approved unless you have some reasons for inadmissibility. Thus, I would advise you to apply for the I-485 right away, which will get you the EAD and travel card within 90 days after filing the application, well before your August deadline.

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    Matthew Kolodziej

    Immigration Attorney
    Answered on

    You should file your I-485 adjustment of status immediately along with you I-756 work permit application. You should get your work permit in 3-4 months. You cannot be a student on OPT and an applicant for adjustment of status at the same time.

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