F-1持有者是否应该进行移民申请？

By: Beth Robertie, Esq. 最近法律界人士在讨论一个问题：F-1身份持有者是否应该在其F-1身份期间进行移民申请(尤其是I-140申请)？对于F-1人士，他们必须显示有回国的意愿；而另一方面，他们又在寻求雇主能支持其永久绿卡的申请，因此，F-1人士在进行移民申请时需要注意到有关nonimmigrant and immigrant intent之间的问题。以下我们就有关问题谈谈： In light of the visa retrogression, a recent issue has been discussed among attorneys: Should F-1 students file immigrant visa petitions (specifically I-140) if they are not allowed to concurrently file I-485 applications due to the retrogression? An F-1 visa holder, unlike some other nonimmigrant visa holders, is not allowed to have dual intent. Therefore, they must maintain an intent to return to their country (thus maintaining close ties to their native country) and they are not allowed to profess any type of intent, even if only a possibility, to immigrate to the United States. On the other hand, an H-1B visa holder for example, is allowed to possess both nonimmigrant and immigrant intent. They may have the intention to return to their country, while also hoping to find a permanent job to sponsor their green card. Expressing this intent, directly or indirectly, does not prohibit the granting of an H-1B visa here or abroad at the U.S. consulate. When an I-140 is filed on behalf of a visa holder, there is intent for the beneficiary of that immigrant visa petition (I-140) to immigrate to the United States. Similarly, in the case of an F-1 visa holder, once an I-140 is filed on their behalf, there is, at least, an implied intent to immigrate. This situation may provide the F-1 visa holder with some difficulty when they go to the university’s international student office to extend their I-20. The International Student Coordinator may ask them whether an immigrant visa has been filed on their behalf. In some cases, upon entering this fact into the SEVIS system, the system will automatically terminate the student’s F-1 status. While this is most often reported after a student discloses having filed an I-140 and an I-485 (Application to Adjust Status to a Permanent Resident), in this instance, there does not appear to be immediate consequences on the student’s ability to remain in the United States and/or stay in school as the I-485 allows the students to remain in the United States while awaiting adjudication of the I-485 in an authorized period of stay. A more troublesome consequence that has been recently reported has involved instances when an F-1 student files only an I-140. In these cases where the SEVIS system has terminated their status as a result of the immigrant visa petition being filed on their behalf, if the student has not filed the I-485, once the SEVIS has terminated their status, the student is no longer in F-1 status, nor are they in any other kind of lawful status or authorized period of stay (that is granted with the filing of a I-485). The only way that the student would be able to get back into F-1 status would be to apply for reinstatement, which often proves difficult, even when the circumstances are far more favorable. It is important to note, however, that an F-1 student has “D/S” notated on their I-94. “D/S” indicates that they are admitted to the United States for the Duration of Status, or essentially until they have completed their academic program. To this end, the F-1 student does not accrue unlawful presence until the USCIS (or Immigration Judge) formally indicates (most often through a letter) that they are out of status. Therefore, just because they may receive a letter from their school claiming that they are no longer in status, it is only the USCIS that can begin the “clock” running for unlawful presence by stating the F-1 student is no longer in lawful status. In many cases, our clients have sought advice regarding their F-1 status after they have concurrently filed I-140 and I-485. In these instances, we have advised that since an F-1 student cannot have dual intent, once the I-140 and I-485 is filed, the F-1 nonimmigrant is now in an authorized period of stay. While this period of stay allows them to remain in the United States and even to remain in school, they cannot expect to receive employment authorization/OPT status from their school (if they haven’t received it already). If they wish to work, they are advised to apply for an EAD pursuant to their pending adjustment of status applications. In some cases, however, it has been reported that F-1 students have received employment authorization/OPT while in F-1 status even after disclosing the filing of the I-140. In these instances, it is probable that the SEVIS system did not terminate their F-1 status. Through conversations with other attorneys, it is apparent that this is not the rule in all instances, therefore, there should be no expectation that all schools will handle cases the same. 本文由范毅禹律师事务所提供 本律师事务所精办各类劳工应聘及专业移民申请 (包括H-1，L-1，EB-1，EB-2，NIW，劳工卡，绿卡等申请)。所有申请由多位美籍律师及拥有15年经验的范毅禹律师亲自处理，我所并特设中英移民网站。内有最新移民新闻资讯及由律师主持的移民问答集，欢迎读者流览查询。 www.fan-law.com (Chinese) www.fanuslaw.com (English) CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP. 370 E. Glenarm St., Pasadena , CA 91106 Tel: [phone] Fax: [phone] MARYLAND : Fan, Fitzpatrick & Thompson, LLP. 230 North Washington Street, Suite 400 , Rockville , MD 20850 Tel: [phone] Fax: [phone]