How will an expired F1 visa affect my I-526 petition?
My F1 visa was expired in June 2013 and I am staying in the U.S. right now. I filed my I-526 petition in February 2013 and am still waiting for the adjudicating result. Can I adjust my status here after the approval of my I-526 approval? Do I need to apply for OPT?
An F-1 visas allows you a grazing period of 60 days. You must act within that time frame to preserve your legal status in the United States. You are out of status right now in the United States. You cannot adjust status domestically and must do consular processing in your native country. You need to apply for OPT as soon as possible if you so qualify.
The F-1 visa allows you to stay in the US for an additional 60 days after you are finish. However, you can also apply for an OPT, which will allow you to stay for another year. My recommendation is for you to apply for your OPT as soon as possible. The fact that you have a pending I-526 application does not give you any status in the US. If you have any other questions, please do not hesitate to contact me.
If you are out of status, that may result in you having to leave the country to change your status, which may create issues. I would recommend you talk to a lawyer and have them review your documents. I would suggest you apply for your OPT.
Philip H Teplen
You should absolutely apply for OPT because if you go out of status, you cannot adjust status domestically and must do Consular processing.
You can only adjust to conditional permanent residency status if you are maintaining legal immigration status. Current legal status can be maintained by F-1 student status, or OPT. However if you are in the U.S. and out of status for more than 6 moths and leave the U.S., you will be barred from re-entering the U.S. for 3 years.
Generally, you can only adjust status if you can prove that you are either in valid non-immigrant status or within your grace period. Since you do not know if/when your I-526 petition is going to be approved, my advice would be to maintain your non-immigrant status for as long as possible (until you are able to file for adjustment).
If your status has expired, then you cannot adjust to another status. You may try to get OPT, but since you have graduated more than a month ago, I wonder if the school will let you retroactively do that. You may want to check, but currently you are only on the "grace period" of 60 days after your F-1 status expiring. Since you only applied for I-526 in February and it is now taking more than 14 months for adjudication, you must go back home and wait to consular process back in after I-526 gets approved.
Your F-1 status expires in 60 days after your graduation. If you have not applied for OPT, you should leave the U.S. and await the result of your I-526 outside of the U.S. According to the current processing time, a decision for an I-526 petition can take 12 months. Without a valid non-immigrant status, such as F-1, H-1, and etc., you cannot adjust your status in the U.S. by filing the I-485 application. Since you filed your I-526 in Feb. 2013, your OPT application may not be approved.
To be eligible for adjustment of status in the U.S., i.e. to file the I-485 application you must be in valid status in the U.S. at the time of filing. Student status is a little different from other non-immigrant status, I would recommend speaking to immigration counsel about the specifics of your status and your options.
Your F-1 status continues for 60 days after the end of your F-1 Program. To preserve lawful non-immigrant status, you need to take action within that time frame. Otherwise you are out of status. If you are out of status at the time of filing your adjustment of status application or you have failed continuously to maintain status prior to filing it, you will be inadmissible and will have to seek consular processing. To be on the safe side, so long as you otherwise qualify, it would appear to be prudent to apply for OPT if you can still do it.
In order to be eligible for adjustment of status, you must be in the United States in lawful non-immigrant status. OPT would qualify as a valid non-immigrant status such that you could adjust your status from OPT to conditional lawful permanent resident once your I-526 petition is approved. The expiration of your F-1 visa does not affect this, but you need to get OPT. Also, keep in mind that USCIS is taking over one year to process some I-526 petitions and other petitions, it takes about six months. If you are not in a lawful non-immigrant status, then you cannot adjust status in the United States; you will have to complete the immigrant visa process at the U.S. embassy or consulate in your home country. Finally, it is important that you do not accrue more than 180 days of unlawful presence in the United States and then leave.
You are currently out-of-status, unless you are on OPT status. You must speak to an experienced attorney today. I posted an earlier response where I addressed your specific issue. If you have not accumulated period of unlawful presence, leaving the United States and waiting for consular processing will be your best option. Accumulating a period of unlawful presence while in the United States illegally will bar you from adjusting your status in the United States and may bar even consular processing.
If you can get the OPT within a short time, you should do so. If not, you must leave the U.S. to avoid the three or ten year bar from re-entry into the U.S. even when your I-526 is approved. An individual will not be able to obtain a green card through the adjustment of status application within the U.S. if he or she has entered the U.S. lawfully but then overstayed the allowed time granted. The three year bar from re-entry to the U.S. applies to individuals who have been unlawfully present in the United States for a continuous period of more than 180 days, but less than one year, and who voluntarily depart the U.S.. The ten year bar from re-entry into the U.S. applies to individuals unlawfully present in the U.S. for an aggregate period of one year or more who depart voluntarily. Unlawful presence begins to accrue when the period of authorized stay expires. Because the I-526 adjudication may take well over eight months to adjudicate, in the absence of OPT, you will be out of immigration status by the time it is approved. Not only you will not be eligible to apply for adjustment of status at that time, you may be barred from re-entering the U.S. for three years depending on the days that you are out of immigration status.
In order to Adjust Status after the approval of your I-526 in the United States, you must be in a valid status at the time of the I-485 filing. The information you provided does not allow me to ascertain whether you already graduated in June or will continue with a a course of study in August. It is important to understand that the expiration of the visa itself does not control your status. Rather your I-94 does, and in the case of those on F-1 student visas the I-94 is normally marked D/S (Duration of Status). D/S corresponds to the validity of the SEVIS I-20 issued and endorsed by your school, reflecting your course of study and the appropriate time frame necessary to complete your studies. I recommend that you immediately contact your International Student adviser at the university you are enrolled at to discuss your current situation and ensure that you remain in status. You can also discuss applying for OPT if it is appropriate or perhaps enrolling for another degree, if you wish to bridge your time in the U.S. until the I-526 is approved.
You must maintain your student status in order to apply for adjustment of status upon I-526 approval. The expiration of your visa does not matter as long as your stay is covered by a valid I-20. If you already graduated, you should apply for OPT in order to maintain your student status.
Adjustment of status via an I-485 application cannot proceed unless the I-526 Petition is approved, but you need to have a legal status to adjust from. Otherwise, you may have to leave the country and process through a U.S. Consulate abroad. Retaining an experienced U.S. Immigration attorney, like those at our law firm, can help you create a strategy that works best with your current and planned U.S. Immigration needs and goals.