Expiring OPT and Filing I-485

[metoo]

Hi -

I'm new here and wanted some help and advice.

I'm presently working on an F-1 OPT due to expire end of June. My wife (currently on H1) has a PERM application in process and we expect the I-140 and I-485 (PD is current) to be filed concurrently sometime in May based on the current DOL wait times and filing I-140 through premium processing. Here are my questions -

1. If the I-485 is filed before my OPT expires but the EAD does not arrive before my OPT expires, can I still work in the interim despite having an expired OPT till the EAD comes through? Is there a grace period for me to stay and wait for the EAD to come through?

2. Do I need to be in the country to file Adjustment of Status? My wife (Principal applicant) is using my country of birth (cross chargeability) to have our PD current.

Thanks.

[UScitizenFilingforspouse]

Hi -

I'm new here and wanted some help and advice.

I'm presently working on an F-1 OPT due to expire end of June. My wife (currently on H1) has a PERM application in process and we expect the I-140 and I-485 (PD is current) to be filed concurrently sometime in May based on the current DOL wait times and filing I-140 through premium processing. Here are my questions -

1. If the I-485 is filed before my OPT expires but the EAD does not arrive before my OPT expires, can I still work in the interim despite having an expired OPT till the EAD comes through? Is there a grace period for me to stay and wait for the EAD to come through?

2. Do I need to be in the country to file Adjustment of Status? My wife (Principal applicant) is using my country of birth (cross chargeability) to have our PD current.

Thanks.

I am understanding that you are on F-1 OPT until ~June 30th and it is safe to assume that your OPT-EAD expires ~June 30th, as well. You will file for adjustment of status in May 2018. And you are asking:

1. whether you may continue to work using your OPT-EAD after filing the I-485 in May 2018, if the EAD you will get through adjustment of status does not arrive between May 2018 and ~June 30th.

EADs typically take at least 90 days. You will be able to work using your OPT-EAD until the day it expires. Depending upon your field, you may qualify for an OPT extension. The rules changed not too long ago. You should, therefore, sit down with someone at your school and take advantage of a free consultation with an immigration attorney. It is my understanding that unless you are adjusting status based on marriage to a US citizen, you must maintain lawful status in the US. Thus, either extend OPT -OR- get another I-20 and get another F-1.

I do know that after your OPT expires, you have a 60 day grace period to leave the country before you are considered illegal.

2. To be able to adjust status, you must be in the US. Per the USCIS website "Use this form (I-485) to apply for lawful permanent resident status if you are in the United States."

Do not confuse keeping your PD current and maintaining lawful status.

Best of luck! And of course, all of the above is my humble opinion.