EAD OPT to 485


ashiktmz

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I have a valid H1B visa and my wife has a valid F1 visa and she has started working on her OPT now. I am going to file for my I 485 on Feb 1st and going to include my wife as a derivative applicant with my application. Can she continue working on EAD based on OPT till she gets her EAD based on Green Card? My attorney said that her F1 status will be deemed invalid once we file for I 485. However, there are no clear regulations on what happens to her EAD based on OPT. So the safest route is to stop working for now. Please advise.

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I found this on Murthy chat.

Attorney Murthy : The F-1 status is deemed no longer valid or capable of being extended once a person files for an immigrant petition or the I-485. However, there are no regulations about what legally happens if a person has an OPT since the OPT person also obtains an EAD and the USCIS may decide to extend the previously granted EAD filed in connection with the F-1 but now with the I-485. The section of the law under which the EAD is being requested will differ, so the USCIS will often grant the new EAD by mentioning the different section of the law on the face of the card or at the back of the card

Based on the above information, F1 will be cancelled. So what happens to the OPT based on F1? My attorney is saying that since F1 is cancelled, it would be safe to stop working on OPT based on F1. My attorney says that there are no clear regulations from USCIS on this scenario. So take the safest path. Below is an article from Murthy on this.

http://www.murthy.com/news/n_f1saos.html

Can any Attorney from Murthy please advise on this scenario?

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Belle & Krish

I found the following information on Murthy chat

Chat User : My wife has an H-4 to F-1 change of status pending. How do I go about filling for my wife's I-485 in July?

Attorney Murthy : A person on H-4 status is allowed to enjoy dual intent, but not a person on F-1 status. Basically, upon filing the I-485, the person loses the F-1 status altogether. So before a decision is made on the F-1, the person is considered to be on H-4 status, especially if the I-94 card for the H-4 status has not yet expired. If the H-4 status has expired, then one must show the filing of the COS to F-1 to show maintenance of lawful, nonimmigrant status in order for the I-485 filing to be approved down the road.

Chat User : Is it legal to work on CPT (F-1) with I-485 pending? What are the legal options until the EAD is approved? Can one work unpaid to retain the job?

Attorney Murthy : There is no dual status allowed while one is on F-1 and files the I-485 AOS application. This is unlike the H1B and L-1 and their dependents that enjoy the benefit of the dual intent doctrine. There are potential risks in working even unpaid since presumably, there is some form of compensation possible in such cases.

Chat User : If one is filing for I-485 and has an approved I-140 and the spouse is on an F-1 visa instead of H-4, would there be any problem because of the visa being F-1 and not H-4?

Attorney Murthy : Generally, it is not a problem as long as dependent family members are maintaining their valid, legal status in the U.S. If they are not doing that, then it is a big problem. There is no dual intent recognized for F-1, so upon filing the I-485, the person cannot enjoy any incidental benefits of the F-1 status since they are lost immediately, unlike with the H1B or H-4 or the L-1 or L-2 status holders.

Belle, Do you guys still think that my wife can work on OPT while AOS pending?

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This is attorney Murthy's discussion on this scenario

Once a person files the I-140 and I-485 and the spouse files the I-485, both spouses are allowed to file for the EAD to be able to keep working legally. Although the F-1 status will not be extended by the USCIS after a person has expressed an immigrant intent by filing the I-140 or I-485, the law does not state that a person"s F-1 EAD is deemed denied or no longer valid merely by virtue of having filed the I-485. The law is not clear on this point, and so the person should be able to keep working incidental to the F-1 status, until the EAD card has been issued, and then work based on the EAD.

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