Astoria, NY asked in Immigration Law for New York

Q: Can I stay in the US if I have a pending I-485 based on F2A category and my F-1 student visa soon to be expired?

I am doing my post-completion OPT. My OPT and F-1 student both will be expired very soon. In addition, because of financial crisis, I also can not continue my study after my OPT. Although, I already have a pending Adjustment of Status (I-485) application based on F2A category as my wife is a LPR. I have already received combo card (EAD+Advanced Parole). In this case, can I remain in the US after my OPT and visa expires? Or I have to leave US?

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2 Lawyer Answers

Kelli Y Allen

  • Immigration Law Lawyer
  • Charlotte, NC

A: As long as your I-485 is pending (meaning that the priority date must be current), your status is "pending adjustment of status". That means that until a final decision is made on the I-485, you are authorized to stay in the U.S. Since you have already received your EAD based on the pending adjustment of status application, you are authorized to work for any U.S. employer and are not tied to your F1/OPT.

I always advise my clients with a pending AOS application to remain in the U.S. if at all possible even though that have been issued the travel authorization. This just prevents any possible issue with border protection improperly denying re-entry. If you do decide to leave before your I-485 is approved, you will use your combo EAD/AP card to re-enter the U.S., not your F1 visa.

Hector E. Quiroga

  • Immigration Law Lawyer
  • Las Vegas, NV

A: If a visa was available to you, and you were in status when you applied, then yes.

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