Getting F-1 while I-485/AOS is pending

Trying to get an F-1 while an AOS/I-485 is pending has been a recurring theme in our community. Last year in May/June we had spent two hours talking about this theme in our community conference calls. A lot of people wanted to do their MBA and were not able to wait for their green cards to join school.

Generally speaking when you have exhibited immigrant intent, getting an F-1 becomes difficult. On top of that, USCIS has said that F-1 is not compatible with a simultaneous I-485. But USCIS has never told us what happens if do file for an F-1 while an I-485 is pending.

Nevertheless, the US consulate in Ottawa at least has issued several F-1 visas in this situation. I think this is a very good decision from the consulate. The doctrine of dual intent that applies by law to H/L visa holders, should be clearly applicable to people who have spent years studying in USA then on H-1 and finally waiting for green cards. These people have demonstrated their commitment to abide by US laws.

Here is an email I just received from a successful visa applicant.

Hi Rajiv,

Just wanted to say THANK YOU SO MUCH for your excellent advice about how to
get an F-1 after filing the 485. I'd spoken to you sometime in late March
over the phone and I pretty much followed your advice. I went to the Ottawa
consulate earlier this week and had a completely unbelievable experience -- I
didn't get any questions whatsoever about immigrant intent or the 485 (I'd
declared that on the DS-156 and also the fact that my brother is a US
citizen)! I also didn't have to show any documents other than the I-20 and
the different DS forms. The interview took all of 2 minutes and the consular
officer was really nice and just asked me about my research interests etc!
Had it not been for your advice, I would've just given up on getting the F-1
-- everyone (including the school's international students office and the
State dept hotline folks!) told me that there was no way I'd get it.

Thanks a lot, again.

Please do not assume you will be able to get a visa. Make sure you discuss your cases in detail with your lawyers before you make any firm plans.

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