STEM OPT Extension (While Married)

[Jun2580 27]

Question: Will USCIS reject my OPT extension application if I am married to an American citizen and we have not applied for AOS yet?

 

I graduated from a university in the US in a STEM major, and I got my OPT approval at the end of last year (2016). While looking for a job for my OPT, I got married to an American citizen. 

I found a job and I have been working for this company for almost 9 months now. Unfortunately, my spouse and I have not been able to apply for AOS (F1-OPT to GC) yet because of the fee and lacking of documentations. (My American spouse forgot to file tax returns in some past years, and I know from reading many websites that my American spouse has to have the previous 3 year tax returns.)

Now, my first OPT will expire within 3 months, and I am wanting to apply for STEM OPT extension soon because it can give me 2 more years of OPT period. My initial thought was, while I have the total of 3 years of OPT, I can apply for AOS with my spouse. However, I recently started feeling worried about whether USCIS will grant me the OPT extension because I am married to an American. 

 

I know that OPT is continuation of F-1 status, which basically is a visa for someone with no immigrant intent. This makes me think I don't qualify for OPT extension because I am married to an American citizen, making it look like I have an immigrant intent ( and in fact, I do have an immigrant intent now that I have an American spouse here). 

I am worried I might be in huge trouble now. I want to apply for OPT extension as soon as possible as my initial one is expiring soon, but I am not sure if I should they might reject it, considering the fact that I am married and have an immigrant intent. 

 

Can someone help me figure this out and give me some advice on what I can do now?

[sweetadams 138]

I feel your concern. But you are totally wrong in your assumption. Since you have not file any AOS with USCIS, they don't know you exist. I would suggest you file for your Extension without delay since it is taking longer to get approval.

Your intent right now does not matter since you have not officially applied to adjust your status. Your spouse can use the most current Tax return and yours too. It is basically to show financial stability as she is supposed to be your sponsor. 

Since you don't have all the documentation, (honestly don't know what you meant by all the documentation), I would suggest you file for your OPT Extension while you continue to gather the relevant documents. 

In the case of USCIS, the documents should show financial mingling, evident of bonafide marriage and living together. Which you should start doing, include names on lease, bills, joint accounts and every other documents that shows your life together.

 

Good luck

[Jun2580 27]

1 minute ago, sweetadams said:

I feel your concern. But you are totally wrong in your assumption. Since you have not file any AOS with USCIS, they don't know you exist. I would suggest you file for your Extension without delay since it is taking longer to get approval.

Your intent right now does not matter since you have not officially applied to adjust your status. Your spouse can use the most current Tax return and yours too. It is basically to show financial stability as she is supposed to be your sponsor. 

Since you don't have all the documentation, (honestly don't know what you meant by all the documentation), I would suggest you file for your OPT Extension while you continue to gather the relevant documents. 

In the case of USCIS, the documents should show financial mingling, evident of bonafide marriage and living together. Which you should start doing, include names on lease, bills, joint accounts and every other documents that shows your life together.

 

Good luck

Thank you. So do you mean I should not have any problem if I apply to OPT extension, even if I already have a USC spouse? I was afraid of getting rejected my OPT extension if they learned that I have a US spouse and they assume I have an immigrant intent, which should not be had on non-immigrant visa like F1-OPT.

 

[sweetadams 138]

2 minutes ago, Jun2580 said:

Thank you. So do you mean I should not have any problem if I apply to OPT extension, even if I already have a USC spouse? I was afraid of getting rejected my OPT extension if they learned that I have a US spouse and they assume I have an immigrant intent, which should not be had on non-immigrant visa like F1-OPT.

 

You will not be rejected as this is a separate case. USCIS treat application on case by case. The fact you have a spouses does not have anything to do with your OPT Extension. You are filing only I-765 form. 

Go ahead and file, there is nothing to fear. Just don't loose your good job because of fear. When you are ready to adjust your status, then you will do that.

[Jun2580 27]

7 minutes ago, sweetadams said:

You will not be rejected as this is a separate case. USCIS treat application on case by case. The fact you have a spouses does not have anything to do with your OPT Extension. You are filing only I-765 form. 

Go ahead and file, there is nothing to fear. Just don't loose your good job because of fear. When you are ready to adjust your status, then you will do that.

 

Thank you! I think I was scared because I-765 form asks about my Marital Status, and it triggered my fear, thinking they would investigate if I have a USC spouse on the record.

 

With OPT extension's approval, I will get 2 year extra time to prepare my AOS documents, is this correct?

[sweetadams 138]

Yes it will,  your marital status is just asking. I have a friend that married a USC and did not file for AOS until about a year ago. Now they gave him straight 10 years because he has been married for over three years. If you want to skip the 2 year GC, then you can wait. The best way is to stay with your OPT extension while you gather documents, pictures and if you want you can wait.

[azblk 338]

Marrying a USC means nothing. It is only if you file for AOS that immigrant intent come into play. so you can go ahead a file for your OPT extension.

[Jun2580 27]

Thank you all for the replies. 

Now I feel so relieved and I feel like I can apply for OPT extension without fear. 

 

My new questions are after I apply for the OPT extension.

1) If I apply for OPT extension and get approved before the initial OPT expires, when will the new OPT start? The next day of the initial OPT's expiration? 

2) After the approval of OPT extension, how long should I wait before I apply for AOS? 

[sweetadams 138]

When you are filing out the I-765 form, there is a place for expiration of your Old OPT card and when you want the new card to start. 

It depends on you, you can apply for AOS anytime you want. Bear in mind that AOS is now taking sometime depending on your field office. 

If you want to skip the 2 year GC and get the 10 yrs GC straight, I would suggest you wait close to your second wedding anniversary before you apply so that your AOS interview will fall after your second anniversary.  

[Jun2580 27]

59 minutes ago, sweetadams said:

When you are filing out the I-765 form, there is a place for expiration of your Old OPT card and when you want the new card to start. 

It depends on you, you can apply for AOS anytime you want. Bear in mind that AOS is now taking sometime depending on your field office. 

If you want to skip the 2 year GC and get the 10 yrs GC straight, I would suggest you wait close to your second wedding anniversary before you apply so that your AOS interview will fall after your second anniversary.  

Thank you for your quick reply.

 

Now I don't have the fear I had before posting this question, I am going to apply for OPT extension, but I guess I would like to know, but what will happen if the OPT extension gets rejected?

Let's say my initial OPT ends at the end of January, and the OPT extension gets rejected at the beginning of January. Will the rejection of OPT extension terminate the initial OPT that still have some days left? Or will it not affect the initial OPT at all? Also what will happen to the grace period of completion of OPT? I know that there is a 60-day grace period if you complete your OPT. Will this still be given if the rejection of OPT extension terminates the initial OPT?

 

I apologize in advance for having so many questions =(

[sweetadams 138]

The OPT Extension rejection won't affect your OPT. The grace period is still intact, the reason is for you to put your house in order so you can travel back to your home country.

I sincerely feel your concern, but you really don't have anything to worry. Even if your OPT extension got denied, you can file for AOS concurrent with I-765 (EAD/AP) since you are already married.

 

[Jun2580 27]

On 10/16/2017 at 4:07 PM, sweetadams said:

The OPT Extension rejection won't affect your OPT. The grace period is still intact, the reason is for you to put your house in order so you can travel back to your home country.

I sincerely feel your concern, but you really don't have anything to worry. Even if your OPT extension got denied, you can file for AOS concurrent with I-765 (EAD/AP) since you are already married.

 

Thank you for your help and all the answers! I am right now in the process of filling out the forms required for OPT extension. Thank you very much.

[MaryLoves 5]

Dear sweetadams and azblk,

 

I actually had the same issue with my I-765 application. I am married to a US citizen, and I have already applied for OPT Extension. 

All of a sudden I got scared if my application might get rejected based on my marital status, and I wanted to check whether there is a similar case online.

 

How did you both learn that the marital status should not affect the I-765 application (as long as AOS has not been applied to yet)?

I would like to have some more details if that's okay with you two. 

Thank you!

Edited October 31, 2017 by MaryLoves

[CentralPark1992 20]

Fyi, my wife applied for OPT while married to me (citizen) and it was never an issue. She has her 2 year extension as of now and we are in the process of applying for her AOS now that we have finally decided to make this our home. 

[MaryLoves 5]

59 minutes ago, himalayanV said:

Fyi, my wife applied for OPT while married to me (citizen) and it was never an issue. She has her 2 year extension as of now and we are in the process of applying for her AOS now that we have finally decided to make this our home. 

Thank you for your reply. Did you two get married while the OPT application was pending, or were you two already married before the application process began? Was it the initial 1 year OPT or OPT extension?

I really hope my application will get approved even though I am married to a US citizen.

Edited October 31, 2017 by MaryLoves