1/24/2008

Current immigration law provides little 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. It appears students are allowed to maintain their F-1 status while applications for adjustment of status are pending.

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).

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. 

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.

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.