File I-485 while on F1 status

[hgdangkhoi]

Hi everyone,

First time I'm posting in this forum, apologize first if I make any mistakes but I hope you guys can help me for my case.

I have been in active F1 status since 2011, currently first semester of Graduate School. I have form I-130 filed, sponsored by my mom for category F2B with priority date of February 2014.

I want to mention that, I have already filed I-485 file once in October 2015, when I was still in F2A status and below 21 year old a few month before. Long story short, even though I know that my status would change to F2B the day I turn 21, I listened to my relatives and filed I-485 anyway, hoping my case is still F2A even after I turned 21. Yes, it's not a smart move, I received my EAD card but never used it, and received a I-485 denial letter few months later, which terminated my EAD. Since I didn't use my EAD, my F1 status never violated. The reason for my I-485 denial was because my priority date was not before either the FILING Date Table or the FINAL Action Date Table. (I didn't check any table when I filed I-485, I just listened to my relatives, yes I was dumb back then)

So fast forward to today, I just checked that the visa bulletin for September 2018 is using the FILING Date table, which is March 22nd, 2014 for category F2B. Based on my research, it seems that I can file my I-485 right now for pending approval, and I should be able to get my EAD card as well. It seems that even though I can file my I-485 right now, I won't be able to receive my Green Card until the FINAL Action Date becomes current (after Feb 2014), but the benefits of using the EAD card still hold until then, even though using it will violate my F1 status, is this correct?

Also, for anyone that filed I-485 using the FILING Date Table, what was your experience? Did you receive something from USCIS saying that your I-485 will be pending approval, and you can use your EAD until your visa becomes available? As mentioned above in my case, my I-485 was rejected because my priority date was not before the FILING date table or FINAL Action Date table, so if I file I-485 this time, will I receive something to ensure that I can stay in the U.S with the EAD until my visa become available and no longer have to maintain my F1 Status?

I know this is a long post, and it might be very confusing. Any helps or advises are really appreciated.

[newacct]

Hi everyone,

First time I'm posting in this forum, apologize first if I make any mistakes but I hope you guys can help me for my case.

I have been in active F1 status since 2011, currently first semester of Graduate School. I have form I-130 filed, sponsored by my mom for category F2B with priority date of February 2014.

I want to mention that, I have already filed I-485 file once in October 2015, when I was still in F2A status and below 21 year old a few month before. Long story short, even though I know that my status would change to F2B the day I turn 21, I listened to my relatives and filed I-485 anyway, hoping my case is still F2A even after I turned 21. Yes, it's not a smart move, I received my EAD card but never used it, and received a I-485 denial letter few months later, which terminated my EAD. Since I didn't use my EAD, my F1 status never violated. The reason for my I-485 denial was because my priority date was not before either the FILING Date Table or the FINAL Action Date Table. (I didn't check any table when I filed I-485, I just listened to my relatives, yes I was dumb back then)

So fast forward to today, I just checked that the visa bulletin for September 2018 is using the FILING Date table, which is March 22nd, 2014 for category F2B. Based on my research, it seems that I can file my I-485 right now for pending approval, and I should be able to get my EAD card as well. It seems that even though I can file my I-485 right now, I won't be able to receive my Green Card until the FINAL Action Date becomes current (after Feb 2014), but the benefits of using the EAD card still hold until then, even though using it will violate my F1 status, is this correct?

Also, for anyone that filed I-485 using the FILING Date Table, what was your experience? Did you receive something from USCIS saying that your I-485 will be pending approval, and you can use your EAD until your visa becomes available? As mentioned above in my case, my I-485 was rejected because my priority date was not before the FILING date table or FINAL Action Date table, so if I file I-485 this time, will I receive something to ensure that I can stay in the U.S with the EAD until my visa become available and no longer have to maintain my F1 Status?

I know this is a long post, and it might be very confusing. Any helps or advises are really appreciated.

First, it is not true that your category "would change to F2B the day you turn 21". Under CSPA, the length of time the petition was pending is subtracted from your age. So if the I-130 was pending for 6 months, you would not age out until 21.5. If the I-130 was pending for 2 years, you would not age out until age 23. In any case, this is moot now as you must seek to acquire the visa within 1 year of it becoming available to take advantage of CSPA.

It is not true that I-485 can always be filed according to the Date for Filing chart. What determines whether I-485 can be filed a given month is the one chart USCIS puts here. Some months they choose the Date for Filing chart. Some months they choose the Final Action Date chart. But whatever chart they choose is the one that decides whether I-485 can be filed that month. This entire fiscal year, including this month (September 2018), USCIS has chosen the Date for Filing for family-based categories. And yes, your priority date can file I-485 this month.

You just have to be in status when your I-485 is filed (i.e. when USCIS receives it). You don't have to maintain status while I-485 is pending; you can remain in the US simply because you have a pending AOS application. You don't need to have an EAD to be able to stay in the US (EAD is just for work); it's your pending I-485 that lets you stay in the US. As long as you are eligible to file I-485 when you file it (which is true for this month), your I-485 will remain pending (and you can stay in the US, and renew EAD and Advance Parole indefinitely) even if the dates retrogress later.

[hgdangkhoi]

First, it is not true that your category "would change to F2B the day you turn 21". Under CSPA, the length of time the petition was pending is subtracted from your age. So if the I-130 was pending for 6 months, you would not age out until 21.5. If the I-130 was pending for 2 years, you would not age out until age 23. In any case, this is moot now as you must seek to acquire the visa within 1 year of it becoming available to take advantage of CSPA.

It is not true that I-485 can always be filed according to the Date for Filing chart. What determines whether I-485 can be filed a given month is the one chart USCIS puts here. Some months they choose the Date for Filing chart. Some months they choose the Final Action Date chart. But whatever chart they choose is the one that decides whether I-485 can be filed that month. This entire fiscal year, including this month (September 2018), USCIS has chosen the Date for Filing for family-based categories. And yes, your priority date can file I-485 this month.

You just have to be in status when your I-485 is filed (i.e. when USCIS receives it). You don't have to maintain status while I-485 is pending; you can remain in the US simply because you have a pending AOS application. You don't need to have an EAD to be able to stay in the US (EAD is just for work); it's your pending I-485 that lets you stay in the US. As long as you are eligible to file I-485 when you file it (which is true for this month), your I-485 will remain pending (and you can stay in the US, and renew EAD and Advance Parole indefinitely) even if the dates retrogress later.

Thank you for your reply. So I want to ask that if I file I-485 based on the Date for Filing, will I receive something like an I797 saying that my I-485 will be pending until a visa slot is available? As you can see in my previous case I got my I-485 denial, I don't want that to happen again and risk violate my F1 status (In my previous case, I maintained the F1 status until the final decision for I-485), so in this case, I guess I just do not not how the process will work because this is the first time I file I-485 using the Date For Filing

[newacct]

Thank you for your reply. So I want to ask that if I file I-485 based on the Date for Filing, will I receive something like an I797 saying that my I-485 will be pending until a visa slot is available? As you can see in my previous case I got my I-485 denial, I don't want that to happen again and risk violate my F1 status (In my previous case, I maintained the F1 status until the final decision for I-485), so in this case, I guess I just do not not how the process will work because this is the first time I file I-485 using the Date For Filing

You will get an I-485 receipt after you file I-485.

Your previous I-485 was denied because you were not eligible to file at the time you filed. It's for you to determine beforehand whether you are eligible to file based on the law and the facts of your case. The receipt will not tell you that you were eligible to file; it will just say you filed.

Assuming you correctly filed I-485 when you were eligible to file, and you don't work illegally after it is filed, and you don't abandon I-485 by leaving the country without AP, your I-485 will remain pending until it is approved, and you don't need to maintain status while it is pending.

[hgdangkhoi]

You will get an I-485 receipt after you file I-485.

Your previous I-485 was denied because you were not eligible to file at the time you filed. It's for you to determine beforehand whether you are eligible to file based on the law and the facts of your case. The receipt will not tell you that you were eligible to file; it will just say you filed.

Assuming you correctly filed I-485 when you were eligible to file, and you don't work illegally after it is filed, and you don't abandon I-485 by leaving the country without AP, your I-485 will remain pending until it is approved, and you don't need to maintain status while it is pending.

So does that mean that if I correctly file I-485 right now and receive the EAD card, I can use the EAD card to work and stay in the U.S with the I-485 receipt, would this be a correct assumption?

[newacct]

So does that mean that if I correctly file I-485 right now and receive the EAD card, I can use the EAD card to work and stay in the U.S with the I-485 receipt, would this be a correct assumption?

Yes, you can stay in the US with a pending I-485 regardless of whether you have an EAD or not. When you get an EAD, you can work.

[hgdangkhoi]

Yes, you can stay in the US with a pending I-485 regardless of whether you have an EAD or not. When you get an EAD, you can work.

I guess I will assemble and file I-485 as soon as possible then. Thank you very much for your advise

[hgdangkhoi]

Also I want to ask that by filing the I-485, am I in any way violate my F1 status? I am asking because just in case the form I-485 got denied, I still have my F1 status in tact and continue to stay in the U.S

[newacct]

Also I want to ask that by filing the I-485, am I in any way violate my F1 status? I am asking because just in case the form I-485 got denied, I still have my F1 status in tact and continue to stay in the U.S

No, it does not violate your status.

[hgdangkhoi]

No, it does not violate your status.

Does working with the EAD that came with the I-485 application violates my F1 status? Cause I think during F1 I'm not allowed to work unless under CPT or OPT, and using the EAD card seems to conflict with this.

[newacct]

Does working with the EAD that came with the I-485 application violates my F1 status? Cause I think during F1 I'm not allowed to work unless under CPT or OPT, and using the EAD card seems to conflict with this.

Yes, working on that EAD would violate your F1 status.

[hgdangkhoi]

Yes, working on that EAD would violate your F1 status.

Hey Newacct, just want to say thanks a lot for your help. Everything you said seem to correspond with my research so I'm more confident about filing I-485.

One last question, you said that with a pending I-485, I can stay in the U.S and work using the EAD without maintaining any status(ie F1), so what kind of documents that say I can stay in the U.S with pending I-485? For example, let's say hypothetically if I got stopped by an immigrant police officer, how can I prove that I'm legally allowed to stay in the U.S? Just the receipt for I-485 is fine, or something else specifically?

[newacct]

Hey Newacct, just want to say thanks a lot for your help. Everything you said seem to correspond with my research so I'm more confident about filing I-485.

One last question, you said that with a pending I-485, I can stay in the U.S and work using the EAD without maintaining any status(ie F1), so what kind of documents that say I can stay in the U.S with pending I-485? For example, let's say hypothetically if I got stopped by an immigrant police officer, how can I prove that I'm legally allowed to stay in the U.S? Just the receipt for I-485 is fine, or something else specifically?

Just the I-485 receipt. They can check in their system to verify that your I-485 is still pending if they want to.

[hgdangkhoi]

Er I guess this is another side question that raised up when I talked to my parent this evening.

So apparently I will file I-485 within a week, using the Filing Date Chart of March 22, 2014 for F2B category Visa. However, my mom, which is the sponsored/petitioner on my behalf of my approved I-130 form, she expects to take the Citizenship test in about 6-8+months (we will send the application in November). Based on what people say, my case will change from F2B to F1 family sponsored category. Even though the cutoff date for F2B and F1 in the Final Action Date table does not differ a lot, it differs by 2 years in the Filing Date Table (March 2014 for F2B and March 2012 for F1).

I guess my question is, by the time my mom got the citizenship status, I have already filed I-485 and it should be pending, but because my priority date is Feb 2014, which is current for F2B but not F1 in the Filing Date Table, would my I-485 be denied after my mom got her citizenship status? Even if my I-485 not being denied, it should now follow the timeline for F1, is this assumption correct?

[newacct]

Er I guess this is another side question that raised up when I talked to my parent this evening.

So apparently I will file I-485 within a week, using the Filing Date Chart of March 22, 2014 for F2B category Visa. However, my mom, which is the sponsored/petitioner on my behalf of my approved I-130 form, she expects to take the Citizenship test in about 6-8+months (we will send the application in November). Based on what people say, my case will change from F2B to F1 family sponsored category. Even though the cutoff date for F2B and F1 in the Final Action Date table does not differ a lot, it differs by 2 years in the Filing Date Table (March 2014 for F2B and March 2012 for F1).

I guess my question is, by the time my mom got the citizenship status, I have already filed I-485 and it should be pending, but because my priority date is Feb 2014, which is current for F2B but not F1 in the Filing Date Table, would my I-485 be denied after my mom got her citizenship status? Even if my I-485 not being denied, it should now follow the timeline for F1, is this assumption correct?

There might be some weirdness with the dates on the chart right now because it is the end of the fiscal year. F1 an F2B might become much closer again in October when the new fiscal year starts. I am not sure what happens to a pending I-485 if the petition moves into another category where the new category was not eligible to file at the time of filing. However, you do have the option to "opt out" of an upgrade from F2B to F1 category if you want, so if it turns out that the upgrade to F1 causes problems for you, you can just inform them you are using the opt-out, and stay in F2B.