F1-OPT --> to green card

[Myriamb 0]

Hello,

I truly hope somebody here will have some experience about my situation. I will describe it shortly :

- I am a F1 visa student that graduated in july 2009. I have an OPT (Optional Practical Training) that gives me a limited right to work (in a field related to my study) during one year. It will expire on July 31

- My husband is a H1 visa. We got married in January and applied together for a green card. As a derivative spouse, I was entitled to ask one too.

- From July 2009 to January 2010, I worked in a fiel related to my study. From January to March, I still worked but not as much as required by the OPT regulation (less than 20 hours a week, but thanks to my lawyer, I was nto aware of this rule). Since March, I work but not in a field related with my study (not allowed).

- Yesterday, I checked online the applications. The green card was granted to my husband. On my side, a Request For Evidence was sent. I highly suspect that the request is made to check whether I kept or not a legal status in the United States. The answer is no since I did not continuously work 20 hours a week a field related to my study.

However there are 2 rules:

- 245 (k) : that allows you to be out of status during 180 accumulated days.

- A provision applicable only to OPT holder, that states that you are allowed not to work during 90 accumulated days.

Which means in my case that :

- From January 1 to March 30 : I am within the 90 days rule

- Beginning April 1 : I am out of status and I have 180 day to comply ie until October 1st

However, this won't explain why I did not inform early the USCI about the various change in my situation : The only info I gave them so far is that I work in a field related to my aera of study.

So in conclusion, this is the arguments I will develop in my RFE. But I am not sure about it. I don't know if the 90 and the 180 days should cumulate or not for example. I don't know if they will grant my application based on this interpretration of the law despite the fact that I did not respect my status (in good faith actually, thanks to the very bad advices of my lawyer) during the last few months.

If anybody has a similar experience, or an experience with these rules, I will really appreciate.

[Aubrey 10]

Hi M. Andy's wife here.

1. Are you using a lawyer who specializes in immigration law? I have seen repeatedly on here that other lawyers mishandle immigration cases (sadly). If you search VJ, you'll find some people have recommended their immigration attorneys on the boards. I've seen Marc Ellis recommended the most often.

2. I have seen people have their working while out of status forgiven for spousal-based adjustments, but it is always a risk and definitely not recommended. You might want to ask people here specific questions regarding that.

3. General VJ advice: try to ask specific questions and they usually get answered if someone knows something about it. the f-1 section is a little newer, so you can also try adding general AOS questions to the Adjustment of Status (Green Card) from Family Based Visas. Also, check the Guides and Wiki sections (in the top menu), as a lot of the family-based AOS information will also apply in your situation.

4. Good luck!