F-1 Students and Adjustment of Status Posted Aug 31, 2007 ©MurthyDotCom Regarding the vast number of I-485, Adjustment of Status to Permanent Residence, cases eligible for filing under the June and July 2007 Visa Bulletins, the Murthy Law Firm received many questions from clients in valid F-1 (student) status, who unexpectedly became eligible to file Form I-485. Most of these students became eligible through spouses, who had been sponsored for employment-based permanent residence, but had not expected to reach the point of I-485 eligibility for quite some time. Although each person's situation is unique, most of the questions asked by these students, essentially, involve the issue of maintaining F-1 status while an I-485 is pending. Because there is little direct guidance from the Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) with respect to this matter, we at the Murthy Law Firm have conducted substantial research to benefit our clients and the greater immigrant community. Here, we share our preliminary research on this topic. We hope that this information will prove helpful to many who are puzzled by the same question: "If I apply for a green card, am I still in valid F-1 status?" ©MurthyDotCom Common View ©MurthyDotCom Applicants for F visas, along with other applicants for most nonimmigrant statuses, like J, B-1/B-2, and TN (except H and L), under current law are presumed to be intending immigrants. To show eligibility for a nonimmigrant visa, an applicant must overcome this presumption and establish the intent to come to the United States only temporarily. If such an individual files for adjustment of status to permanent residence while in the U.S., it contradicts the required nonimmigrant intent underlying the eligibility for temporary status. Therefore, the prevailing common view is that filing for adjustment of status effectively terminates a student's F-1 status. Hence, many are of the opinion that, once a student becomes an adjustment-of-status applicant, s/he is not eligible for any ancillary benefits normally extended to F-1 students. One example of such a benefit is on-campus employment without the need for an Employment Authorization Document (EAD) issued on the basis of a pending I-485. In addition, the student may not be eligible for Curricular Practical Training (CPT), which must be authorized by a Designated School Official (DSO). The student may not even be eligible to apply to the USCIS for Optional Practical Training (OPT). ©MurthyDotCom History of this Matter : No Formal Guidance ©MurthyDotCom The USCIS has issued almost no formal guidance on maintaining nonimmigrant status, other than for the H-1/H-4 or L-1/L-2, while an application for adjustment of status is pending. Various DHS / USCIS representatives have provided informal and contradictory statements, indicating that the USCIS has not formulated a clear policy on this matter. ©MurthyDotCom The last time there was clarity on this issue was under the provisions of the Immigration and Nationality Act of 1952, which specifically prohibited maintenance of nonimmigrant status while seeking adjustment of status. In 1958, however, this provision was removed from the Act. Furthermore, there are some precedent cases that unequivocally speak on the subject, finding that the student's filing of an adjustment-of-status application does not, in itself, constitute a failure to maintain nonimmigrant status. ©MurthyDotCom Effects of Filing for Adjustment on F-1 Status : A Viable Interpretation ©MurthyDotCom There is little doubt that a student who files an application for adjustment of status is not eligible for a student visa for the purpose of returning to the U.S. from a trip abroad. Leaving the U.S. while an adjustment-of-status application is pending generally constitutes an abandonment of the adjustment application, unless a student has obtained an advance parole document. ©MurthyDotCom It appears, however, that there is some argument for the position that a student may maintain the F-1 status in the U.S., while her/his adjustment-of-status application is pending. There may be many who can benefit from this for several reasons, such as the ability to continue on-campus employment without interruption, using an OPT / EAD until it expires (unless a new EAD is issued based on the I-485 filing), the ability to continue CPT employment or receive authorization for CPT employment, the ability to accept graduate assistantships, and, arguably, the ability to fall back on the F-1 status if the application for adjustment of status is denied. ©MurthyDotCom Conclusion ©MurthyDotCom Current immigration law provides little, if any, guidance on the maintenance of F-1 status while applying for adjustment of status. Students in this situation should be cautious when making any decisions pertaining to F-1 status issues. While it appears students are allowed to maintain their F-1 status while applications for adjustment of status are pending, each person's situation is unique and may require advice from legal counsel. Since there is no clear-cut law or guidance, the safest course for an F-1 student is to obtain the Advance Parole and the EAD, or have a backup dual-intent status, like the H1B or H-4, to be on the safe side.
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