Navigating F-1 Visa and Adjustment of Status: OPT Renewal and Dual Intent

Firstly, congratulations on your decision to get married!

We are always being approached by clients who are in F-1 student status with valid OPT, and who are frustrated by the fact that they haven't been picked up in the H-1B lottery yet. These clients have been in a romantic relationship here in the US for a long time and ask if they would be eligible for a Green Card if they got married to their US Citizen or Permanent Resident spouse. Of course, these people are in legitimate loving relationships who are not getting married just for immigration purposes. Their decision to marry is often already made but the immigration insecurities lead them to accelerate their wedding plans so that they can live together safely. 

This exciting new chapter in your life brings about questions regarding your F-1 visa, Optional Practical Training (OPT), and the Adjustment of Status process. In this blog, we'll address your concerns about renewing your OPT while your Adjustment of Statu is pending, the optimal timing for OPT renewal, working on OPT during the I-485 process, and the concept, of dual intent as it relates to the F-1 visa. Let's dive in!

Renewing OPT while Adjustment of Status is pending:

As an F-1 visa holder who is eligible for OPT, you may wonder if you can renew your OPT while your AOS application is pending. Although there is no technical law on the books that forbids you from extending your OPT while your Adjustment of Status is pending, we always recommend that clients extend their OPT before applying for Adjustment of Status. This is because USCIS does not like it when someone has demonstrated immigration intent (Adjustment of Status) and then requests a non-immigrant benefit (extension of student based OPT). Therefore, there is a chance that USCIS can deny your OPT based EAD. 

Some people do get away with extending their OPT while their Adjustment of Status is pending, however, if you have the option to apply for the extension before the Adjustment of Status you should do so in this order. 

Working on OPT during the I-485 process:

While your I-485 Adjustment of Status application is pending, you can continue working under your OPT authorization. Make sure to adhere to the terms and limitations of your OPT and consult with an immigration attorney if you have any concerns about your employment eligibility during this period.

Understanding the dual intent concept:

The F-1 visa is considered a "nonimmigrant" visa, primarily intended for individuals pursuing a temporary stay in the United States for educational purposes. However, the F-1 visa does not preclude the possibility of having dual intent. Dual intent means that while you intend to maintain temporary nonimmigrant status, you also express the intent to eventually seek permanent residency (immigrant status) in the United States via marriage for example. The concept of dual intent recognizes that F-1 visa holders may have genuine reasons to pursue both temporary and permanent stays in the country.

Note also that the F-1 visa is not dual intent for purposes of travel. This means that while your Adjustment of Status is pending the student cannot leave the United States. If they do, their Adjustment of Status petition would be denied unless they have received their travel permission via an approved advance parole. The only people who can travel without the advance parole while an Adjustment of Status is pending, are people who have H-1B or L-1 status, provided that they have a valid visa stamp in their passport for their current employer. 

Conclusion:

As an F-1 visa holder who has married a U.S. citizen, you can apply for Adjustment of Status to pursue lawful permanent residency. It is generally recommended to renew your OPT before filing the I-485 to maintain continuous employment authorization. Remember to comply with the terms of your OPT and consult with an immigration attorney for personalized guidance.

Please note that immigration policies can change, and it's crucial to consult with an experienced immigration attorney or refer to the official USCIS website for the most up-to-date information on OPT renewal, Adjustment of Status processes, and F-1 visa regulations.

Best of luck with your Adjustment of Status application and your future endeavors in the United States! 

Should you or your loved one have any questions or need representation, please do not hesitate to call us, email us at info@khunkhunlaw.com or review other options to get in touch with us for an immigration consultation. We have represented many clients with successful results even with the most difficult set of facts.