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Extending I-20 after I-485 is filed

Published Aug 1,2018 By Mah

Hi,

My I-140 for NIW is still in process and I want to file I-485. Considering the worst case that I-140 and consequently I-485 is denied, I want to keep my F-1 status as long as possible.  My I-20 expires in one year, then:

1- If I don’t apply for EAD and AP, is it illegal to request for I-20 extension while i-485 is pending?

I’m going to check this with International office of university too, but based on my friend’s experience, it seems they are OK to extend and they just update the SEVIS in the system. BUT, a lawyer outside university has told them that’s 100% illegal and it’s called double status or something like that.

2- A side question is that, if you decide to file for EAD and AP after after filing I-485, do you need to still check the visa for your category to be “current” OR you can submit EAD and AP request anytime after you filed I-485?

Reason is, back to question 1, I don’t intend to use EAD/AP before my I-140 gets approved, but want to file I-485 cause there is a good chance that it won’t be “current” very soon in future.

Thanks,

MA

Posted in I-485
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Tigran Kalaydzhyan
Tigran Kalaydzhyan
5 years ago

Yes, the lawyer is right, once you file I-485, you should not apply for non-immigrant status (such as F1 and J1), because it will create a conflict of intents. Filing I-485 (and even I-140) demonstrates immigrant intent. Yes, you can submit EAD and AP requests anytime while I-485 is pending. Please feel free to ask any further questions in this thread.

Mah
Mah
5 years ago

Well, I asked the international office yesterday, and they said we will do that and that is just a SEVIS update and there is nothing to be confirmed by USCIS. So, again strange!

Also, about your intent comment, well I know for sure that lawyers don’t have issue with filing I-140 and then extension or even OPT (at least they don’t say it’s illegal). Another thing that I’m going to check is that It seems one of my friends filed I-485 and then applied for OPT and got approved! Going to get the details again.

About the intent part, this article from a law firm was interesting for me, which they discuss difference of intent and desire based on I think a legal case in court. Just read if you have time. https://www.hooyou.com/f-1/140filing.html

And, another point is that: in I-20 case, it seems university doesn’t have an issue and they don’t need to get confirmation from anywhere. So, considering your comment that it IS an issue, where and when that issue will be brought up?
The I-485 officer or during interview they are going to ask me why I extended my previous legal status?! The I-485 officer is there KNOWING that I was a student before, because one of their tasks (based on USCIS) is that to check if I was in the US legally from time I entered. So, they are going to see that I was a student, and then probably based on SEVIS notice that I extended that, but even without extension I’m there to get immigrant visa and that’s clear from beginning.
The other way makes sense: if I go out of US and try to get a non immigrant visa again, because immigrant intent is shown before. But inside US and while filing for immigrant, keeping my legal status is an issue?!

PS-I’m not saying you are wrong, just trying to see it from different views and see what are other people experiences.

Tigran Kalaydzhyan
Tigran Kalaydzhyan
5 years ago
Reply to  Mah

Hi Mah,

What you are describing is a gray area. You can exploit the fact that different agencies are not communicating well with each other and go against the law. It does not matter until it does, it may come up during the interview or elsewhere. In principle, it is possible to extend F1 after filing I-140, I know cases like that, where a lawyer would find a way to explain, why it does not create a conflict of intents (for example, due to long waiting times for Indian nationals). Extending F1 status while I-485 in pending is outright risky and is not necessary, because, in this case, you could stay in the country legally even if F1 status expires.

Mah
Mah
5 years ago

This is an example from USCIS website: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter4.html

Example: Effect of Timely Filed Extension of Stay Application

January 1, 2009
A foreign national is admitted to the United States as a B-2 nonimmigrant visitor.

June 30, 2009
The B-2 nonimmigrant’s authorized stay expires, as indicated on the Arrival/Departure Record (Form I-94).

June 1, 2009
The B-2 nonimmigrant timely files an application to extend visitor status.

August 1, 2009
The B-2 nonimmigrant files an adjustment application.

September 1, 2009
USCIS extends the B-2 nonimmigrant’s visitor status valid from June 30, 2009 to December 31, 2009.

In this example, although the non-immigrant filed for adjustment of status on August 1, USCIS approved his application to extend non-immigrant status on September 1 (and to end of they year) to make his stay legal from June 30 that his non-immigrant visa was expired.
I think B-2 visitor visa is also for non-immigrant intent, right? If yes, at the time of his extension approval, the case was clearly a non immigrant extension while also the person applied for immigrant status. What do you think about this?

Tigran Kalaydzhyan
Tigran Kalaydzhyan
5 years ago
Reply to  Mah

In this example, the foreign national applied for extension of non-immigrant VISITOR status while being in B-2 non-immigrant status, so there is no conflict of intents.

Mah
Mah
5 years ago

I think you missed the August 1 event that he applied for an adjustment of status, which by USCIS site is:
“Adjustment of status is the process that you can use to apply for lawful permanent resident status (also known as applying for a Green Card) when you are present in the United States.”
So, on September 1, that USCIS approved the extension, he had already filed for GC. The applicant needed this because at the time of filing for GC, his B-2 had expired.

Tigran Kalaydzhyan
Tigran Kalaydzhyan
5 years ago
Reply to  Mah

I had a look at the quote in the context of the entire document and yes, you are right, I misunderstood what they meant by the “adjustment application”. In this case, there is no conflict of intents, because the person applied for the extension of visitor status before filing for the adjustment of status. It does not matter that the extension was approved later. In your case, however, applying for I-20 after filing I-485 creates a conflict of intents. Form I-20 is a “Certificate of Eligibility for Nonimmigrant Student Status”. After filing I-485, you are not eligible for the nonimmigrant status. It may (and probably will) go through, but, as mentioned before, it is a gray area and consequences may vary.

Mah
Mah
5 years ago

Well, as you said it’s a gray area. But, I think it should matter when the extension was approved, because when they were making the decision they clearly knew that he had applied for green card, so they made the decision knowing that this non immigrant is making a adjustment to immigrant status. Isn’t his the dual intent that you are talking about?!
They could just say that you were admitted as a non immigrant with the assumption that you do not want to become an immigrant, but you clearly have applied for immigration, so your extension is denied and you should go back.
And if you saw the page, this example is listed on Chapter 4 – Status and Nonimmigrant Visa Violations. So the page is clearly about non immigrant violations. Shouldn’t they just explain under this example that this case is a dual intent and you are not allowed to file for immigration?!

Tigran Kalaydzhyan
Tigran Kalaydzhyan
5 years ago
Reply to  Mah

The idea of that tricky example was to show in what case will USCIS consider the presence of the applicant to be lawful for the purposes of the adjustment of status. As you see from the example, the issue date does not matter. I do not know if this particular situation is classified as a “dual intent”. The most common case of a dual intent is H1B visa. Usually, conflict of intents takes place in two situations:
[*] Person files for the adjustment of status and, after that, applies for a non-immigrant visa.
[*] Person enters the U.S. on a non-immigrant visa and then files for the adjustment of status (or marries a U.S. citizen) within 90 days.
There are more examples, but these two are the most common.

Yes, in theory, the university and the student should be denied I-20 extension, if I-485 is filed. However, in practice, this may not happen.

Mah
Mah
5 years ago

Regarding the two examples of conflict of intent, maybe USCIS sees a difference between “applying” and “extending”. Because as for the second case, I know that some lawyers say that if you extend your I-20 do NOT file for I-485 till 90 days. But, some other say that, no, that 90 days is only for the time that you enter US and extension has nothing to do with that. The above example shows that probably the second group are right, because the applicant applied for adjustment after 2 months of applying for extension. So, again maybe as the university says, the extension or any legal action on your current visa is not against the law. As far as I remember, all lawyers and USCIS says that by using your EAD/AP you will loose your previous visa status and will have a new one, so you can’t do anything on the previous one or return to it.

Also, this document from University of Houston is interesting. https://www.uh.edu/oisss/resources/forms/I485Pending.pdf
They are giving two options to their students who files i-485, one with maintaining F status and keeping the SEVIS number, another one is terminating SEVIS and become PR pending in the system.

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