Concurrent filing is newly afforded to EB-5 investors under the EB-5 Reform and Integrity Act of 2022 (RIA). Concurrent filing refers to the ability to apply for an adjustment of status (AOS) on the Form I-485 as long as the priority date on the underlying immigrant visa petition is “current” that month under the Visa Bulletin and USCIS is accepting AOS applications under its Adjustment of Status Filing Chart.
Concurrent AOS processing has many advantages to the F-1 student. If USCIS accepts the AOS as properly filed, the F-1 student obtains work independent of optional practical training (OPT). The F-1 student also obtains travel permission independent of the F-1 visa, meaning, if the F-1 visa has expired and there are delays at the consular post for visa issuance, the AOS-related travel permit (also called Advance Parole) would allow the student to leave and return.
As long as the AOS is pending, the employment authorization documents (EADs) and Advance Parole may be renewed. Normally, timely filed EAD renewals will enjoy an automatic 180 day extension. Under recent USCIS policy, AOS-related EADs will enjoy a temporary automatic extension of 540 days for renewals filed up to and including October 26, 2023.
There are important cautionary conditions, however. For example, the F-1 student should not leave the U.S. after filing the AOS until the Advance Parole is issued by USCIS. USCIS will treat the AOS application as abandoned if the Advance Parole is not in hand at the time of departure.
Abandonment can have serious detrimental consequences, if for example, USCIS is no longer accepting AOS applications under the Adjustment of Status Filing Chart because of visa retrogression or otherwise.
Delays in Advance Parole processing may necessitate applying for an emergency Advance Parole application in certain instances, where there is an urgent need for travel.
There may also be delays in AOS-related employment authorization document (EAD) issuance. Moreover, in the event the underlying I-526E or I-526 case is denied, the associated AOS would also be denied.
Therefore, maintaining F-1 status and OPT work authorization as the primary immigration track is generally advisable.
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Question 1: I am currently an F-1 student and will be on OPT after graduation. If I file my adjustment of status, will that change my F-1 status in any way?
Answer: Filing an AOS will not impact your F-1, which is your nonimmigrant (or temporary) status. You can think of the F-1 status as the main U.S. immigration track. You can think of the AOS track as your backup track. As such, you should be sure to maintain your F-1 status and follow all the guidelines advised by your F-1 institution. You will want to make sure you are following all the timeframes and guidelines for maintaining a full course of study or working in OPT.
Because the AOS is a backup, you have the benefit of having an alternative basis for work authorization, should there be any issues with your OPT work authorization. Importantly, however, if you discontinue working in OPT and begin work under the AOS-conferred work authorization, you are no longer maintaining your F-1 status. Because it is beneficial to have the benefits of both tracks available, you will want to stay on F-1 related work authorization unless and until doing so is untenable. Please consult with us before accepting employment that is not authorized by OPT.
Question 2: If a prospective employer asks questions like, “Do you require sponsorship nor or in the future?” how should I answer?
Answer: In keeping with the idea of maintaining parallel F-1 and AOS tracks, it is beneficial to have the option of employer sponsorship parallel to your AOS application. Note, however, that employer immigration sponsorship requires you to follow the conditions of the sponsored immigration status, such as H-1B. You should check with your employer and/or the attorney filing your H-1B if you have any questions about the conditions of H-1B employment.
Note also that the H-1B filing attorney is probably your sponsoring employer’s immigration attorney only and may not also represent you at the same time. If so, be aware that the attorney’s duties run to the employer and not to you.
Question 3: How long will it take for my employment authorization and Advance Parole to issue after filing the AOS?
Answer: This varies but you can expect it to be a number of months, up to half a year or more. Again, this is one of the reasons why it is important to maintain your F-1 status alongside your AOS.
Question 4: I hear “travel permit,” “travel authorization,” and “Advance Parole”. Do they all mean the same thing?
Answer: The Form I-131, Application for Travel Document is used for different kinds of travel permits, which is a generic term for documentation serving as evidence for travel authorization (or return to the U.S.). The I-131 is used to apply for Advance Parole, which is the time of travel authorization afforded to AOS applicants.
Question 5: Can my AOS be approved while my I-526E or I-526 EB-5 petition is still pending?
Answer: No, your I-526E / I-526 EB-5 petition must be approved before your AOS can be approved. USCIS is currently taking at least 3 years generally to approve I-526 petitions, so keep the timeframe in mind when planning.
Question 6: If my priority date was “current,” but a backlog puts my priority date back before my AOS is approved, what happens to my pending AOS, EAD, and Advance Parole?
Answer: Your AOS will remain pending, and you remain eligible for EAD and Advance Parole renewals. Once your priority date is current again, you will become eligible for AOS approval if your I-526E / I-526 petition has been approved.
Please contact us if you have any other questions about concurrent AOS filing while in F-1.
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