Apply for OPT while adjustment of status is pending

[hgdangkhoi]

Hi guys,

Happy new year! I apologize if this question has been asked already, I see some conflicting answer while doing research so I want to ask again to make sure.

I am on F1 visa, have a full-time offer starting in 2 weeks. I will use CPT to work until May 15th. My international advisor told me to apply for OPT in February so I can get EAD around May in order to continue working.

Now, I also plan on getting married with my fiancee who is USC at the end of January. So this would be before I filed for OPT. I have heard that you cannot filed for OPT while AOS is pending, and I'm not sure if I apply in Late January, the EAD of AOS can come in May or not (so that I can continue working).

What should I do in this case? Should I apply for OPT now, wait to get the OPT EAD in around April/May to continue working, and then get married and start AOS? Or should I just get married right now and forget about OPT?

Thank you for any suggestions!

Edit: I forgot to mention that right now I already have a pending AOS application from my mom (F2B), by already have this AOS pending, would that completely eliminate my chance of applying for OPT?

[azblk]

Get married and start your AOS right away. Makes no sense going for OPT when you could be doing AOS. If you are lucky you will get your AOS EAD before May 15th and you wont have work interuption.

[hgdangkhoi]

Get married and start your AOS right away. Makes no sense going for OPT when you could be doing AOS. If you are lucky you will get your AOS EAD before May 15th and you wont have work interuption.

Do you know if I get married and do AOS and OPT at the same time, would the OPT still get accepted? Or is it a known fact that they won't accept OPT if I already have AOS filed?

[azblk]

Do you know if I get married and do AOS and OPT at the same time, would the OPT still get accepted? Or is it a known fact that they won't accept OPT if I already have AOS filed?

I dot know for sure but it is unlikely you would get OPT while you have a pending AOS because OPT by its nature is only available to non immigrants and by filing AOS you have shown immigrant intent therefore no longer qualify for OPT. I dont understand why you are hang up on OPT. It is a waste of your time and money.

[hgdangkhoi]

I dot know for sure but it is unlikely you would get OPT while you have a pending AOS because OPT by its nature is only available to non immigrants and by filing AOS you have shown immigrant intent therefore no longer qualify for OPT. I dont understand why you are hang up on OPT. It is a waste of your time and money.

It's not that I'm hang up on the OPT, it's just I think between the 2, OPT has better chance to arrive by May for me to continue to work, and I afraid that if I don't have the proper work authorization for too long the company would let me go, and that's the last thing I want to happen.

Also reason I asked is because AOS EAD generally take about 3-5 months, while OPT is like 90 days. Correct me if I am wrong.

[azblk]

It's not that I'm hang up on the OPT, it's just I think between the 2, OPT has better chance to arrive by May for me to continue to work, and I afraid that if I don't have the proper work authorization for too long the company would let me go, and that's the last thing I want to happen.

Also reason I asked is because AOS EAD generally take about 3-5 months, while OPT is like 90 days. Correct me if I am wrong.

OK I had no idea that it is quicker to get an EAD by way of OPT.

[Sin_tist]

EAD through OPT normally arrives faster than EAD through adjustment of status (AOS).

The decision to apply for EAD based on OPT or AOS must solely be based on the time you have.

If you apply for EAD through AOS, there may be a lot of variability in processing time depending on the situation. Your EAD might not arrive even 6-8 months after application. If you're okay with it, go ahead with EAD through AOS. If not, it's just much safer to go with EAD through OPT.

500$ for the EAD application through OPT/STEM OPT is a very small price for the safety involved.

Once you have your 12 month OPT or 24 month OPT in hand, you can apply for new EAD through AOS. 6-8 months is the minimum buffer you need.

[Enub4]

If you apply for OPT now, then you get married and do the AOS in a few months, you may get the GC before the OPT EAD expires.

[hgdangkhoi]

Enub4 Sin_tist hey I edited my post, forgot to mention that right now I already have a pending AOS from my mom (F2B), would that completely eliminate my chance to apply for OPT because AOS means I have intention to immigrate, hence opt denial?

[Sin_tist]

Some lawyers say it doesn't hurt to have parallel applications (immigrant intent/non immigrant intent). I've also heard some lawyers say it's risky to apply for conflicting applications. The agent wasn't too helpful either and just said "You can apply for benefits for which you are eligible".

Unfortunately, I am not sure either.

[azblk]

Enub4 Sin_tist hey I edited my post, forgot to mention that right now I already have a pending AOS from my mom (F2B), would that completely eliminate my chance to apply for OPT because AOS means I have intention to immigrate, hence opt denial?

What do you mean you have a pending AOS? have you filed a i-485 or your mom only filed i-130?

[hgdangkhoi]

What do you mean you have a pending AOS? have you filed a i-485 or your mom only filed i-130?

My mom filed 130 in 2014. September 2018 my category became current (for filing chart) so I filed 485. I got an EAD card in April 2019 but no other update on 485 since October 2018 Biometrics. The case is taking very long so we thought that it is better to go for the marriage path instead

[azblk]

My mom filed 130 in 2014. September 2018 my category became current (for filing chart) so I filed 485. I got an EAD card in April 2019 but no other update on 485 since October 2018 Biometrics. The case is taking very long so we thought that it is better to go for the marriage path instead

I am not sure about it but I do not think you can have more than one i-485 pending at the same time. But even if you can it is unlikely that a marriage based petition based on a marriage you have not contracted yet and a petition you have not filed yet that is not guaranteed to be approved would be faster.

Personally I think your best course of action in your situation is to sue the USCIS. File a mandamus.

[hgdangkhoi]

I am not sure about it but I do not think you can have more than one i-485 pending at the same time. But even if you can it is unlikely that a marriage based petition based on a marriage you have not contracted yet and a petition you have not filed yet that is not guaranteed to be approved would be faster.

Personally I think your best course of action in your situation is to sue the USCIS. File a mandamus.

Of course I would get married first before filing the AOS, and what do you mean by a petition I have not filed yet...?

[azblk]

Of course I would get married first before filing the AOS, and what do you mean by a petition I have not filed yet...?

I mean that your marriage based AOS that has not been filed yet and can not possibly be approved before your pending AOS based on your mom. Like I said earlier whatever is stalling your family based AOS will also hold up your marriage based AOS.

Since you already have an EAD based on your pending AOS why are you even bothering with trying to get OPT? Also if you have used your EAD from your pending AOS to work then technically you are no longer in valid F1 status and as a result you OPT application will likely be denied. You should send in your EAD/AP renewal ASAP btw as those are also taking very long to process - it is free to do with pending AOS.

I think it is more prudent to stay with your petition based on your moms i-130 as it results in a 10 year green card rather than a potential marriage based one that will result in a conditional one plus more money paid and it can still be denied.

Concentrate on you current petition. File a mandamus petition if you have too. Its a better way to spend your money and can be concluded much faster than the new petition you file after getting married.