Filing I-140 and I-485 while in F1 visa


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Came to US in 2001 on F1 visa, graduated in Fall 2003 and have been working on and off (had to change status to F2 and F1 in two occasions and back to H1b) on H1b for last many years. Finished the first 6 years period for H1b and now in F1 visa (filed PERM in sixth year and got audited). Currently in F1 again and my PERM (EB2) result is expected in a month or so. My question is; if I get my PERM approved, can I file for I-140 and I-485 concurrently? I am from UK and have MBA (EB2 category) and the visa is current for UK for EB2 categories. I am concerned about the intention difference between F1 and H1b visa holder, any advise will be much appreciated. Thank you.

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I am not sure if you would be able to file for I-140/I-485 (immigrant petition/AOS) while being on F1 a non-immigrant visa. Also since your PERM was already filed I am surprised how they approved F1 while you clearly have immigration intent.


I suggest get consultation with a qualified immigration attorney.

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  • 3 weeks later...

Employment based visa is for future employment. I guess It doesn't matter in which status you are in US as long as you are not violating any legal stay limits. The only problem is when you file for AOS you need to be present in the United states legally. If you leave the country before your advance parole is approved, I guess your application is assumed as abandoned. Please consult a good immigration attorney if your case is complicated. 

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  • 1 year later...


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