Will my i-485 get denied?

[lonqin11368 0]

My husband is a LPR. We filed the I-130 and was approved in May, 2013, and that was also when the priority date became current. I was on student visa when I finished college in 6,2013. After that, I filed for OPT which started on 7/1/2013 and my EAD card from opt is going to expire on 6/30/2014. I already got a new EAD card as a result of the i-485 application. I had never worked on OPT, I did not know about the 90 days unemployment rules until today. The i485 application was filed in March this year, and on 7/25/2014, which was last week,we went to our interview. So I am thinking, if the 90 day umemloyment counts, I was actually out of status when filing for i-485, so will my i-485 get denied because of this?

Any thoughts will be appreciated.

[Harpa Timsah 13,258]

When did you file the I-485?

[lonqin11368 0]

In March, this year.

[Harpa Timsah 13,258]

So before your OPT? Then no, it won't make a difference, because your pending I-485 put you in a period of authorized stay.

Edit: Oh, I see your OPT is from last year. In that case I am not sure. Possibly.

Edited July 30, 2014 by Harpa Timsah

[Ian H. 207]

According to the dates, your EAD expired in June of this year and you filed for AOS in March of this year. Therefore, it doesn't sound like you were out of status because your EAD for OPT was valid when you filed for AOS. Just curious, what is 90 day unemployment period you are referring to? Is your status only valid while you are employed?

[Ian H. 207]

Also you said you went to the interview already, what did they tell you?

[lonqin11368 0]

I read it somewhere today on a website, it stated that the OPT visa would be invalid if you accumulate 90 days of unemployment.

My husband and I went to the interview last week, the IO asked me about the visa I used to enter the U.S., I had a B-1 visa when I entered. She looked at the visa and asked me why I overstayed. I then gave her the change of status from B1-F1, all my I -20s and the opt. She looked at them but didn't say anything. The interview was very simple, just basic questions about our relationship. She took my I-94, took two of our pictures, and then she said I should receive a response in 2-3 months, maybe sooner. And then she said she'll still have to do my visa, which I don't know what she was referring to.

Edited July 30, 2014 by lonqin11368

[Ian H. 207]

I found this:

http://www.ice.gov/doclib/sevis/pdf/opt_policy_guidance_042010.pdf

It looks like the 90 day unemployment caused you to be out of status. According to the instructions on the I 485, you can be exempt if you are the immediate relative of a USC. Meaning your spouse would have to be a USC, to be exempt. Unfortunately, he's an LPR. It also says you can be exempt due to technical reasons, but I don't know what they consider "technical" reasons. According to what I've been reading online, it looks like DHS has to verify if you maintained your nonimmigrant status, which might be the reason why your AOS wasn't approved right away.

Also keep in mind that if your status is dependent on you being employed, reaching the end of the unemployment period would have caused you to accrue unlawful status. In the link I provided it states things you can do to keep from being out of status, but I'm not sure how that works.

I would speak to an immigration lawyer, to be on the safe side of things. I read somewhere that this may not necessarily affect your AOS. Or you could just wait for a decision on the AOS, but I would want to know what to prepare for, should anything go wrong.

I read it somewhere today on a website, it stated that the OPT visa would be invalid if you accumulate 90 days of unemployment.

My husband and I went to the interview last week, the IO asked me about the visa I used to enter the U.S., I had a B-1 visa when I entered. She looked at the visa and asked me why I overstayed. I then gave her the change of status from B1-F1, all my I -20s and the opt. She looked at them but didn't say anything. The interview was very simple, just basic questions about our relationship. She took my I-94, took two of our pictures, and then she said I should receive a response in 2-3 months, maybe sooner. And then she said she'll still have to do my visa, which I don't know what she was referring to.

[Ian H. 207]

Ok. I also found this. You can read the whole thing or go down to where it says "F and J status violations."

http://www.murthy.com/2013/06/03/differences-between-lawful-status-period-of-authorized-stay-unlawful-presence/

It looks like even though you were "out of status" before your AOS was filed, you didn't accrue any unlawful presence. It says that your unlawful presence starts to accrue only after a formal finding of the violation of status is made. So if your AOS gets denied because of that, you would still be able to apply for an immigrant visa abroad and not be subject to the unlawful presence ban. This is from a law firm, but you should still verify this on your end to be sure.