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Short Answer (2025)
Yes. F-1 students — including those on OPT or STEM OPT — may pursue permanent residence through EB-2 or EB-3 if they qualify. You can file I-140 at any time; I-485 (Adjustment of Status) can be filed only when your priority date is current under the Visa Bulletin and you meet adjustment requirements.
EB-2 vs EB-3: Who Qualifies?
EB-2 fits professionals with an advanced degree (U.S. master’s or equivalent) or exceptional ability. It usually requires PERM and a permanent job offer, unless you qualify for a National Interest Waiver (NIW), which removes the job-offer/PERM requirement.
EB-3 covers skilled workers (2+ years), professionals (bachelor’s), and other workers (unskilled). EB-3 always requires PERM and an employer’s I-140.
- PERM (DOL): tests the labor market at prevailing wage before USCIS can approve the immigrant petition.
- NIW (EB-2 only): you self-petition by showing national importance, you’re well-positioned to advance the endeavor, and the waiver benefits the U.S.
Typical Paths from F-1/OPT
You may remain on F-1/OPT while I-140 is pending. Adjustment (I-485) requires a current priority date.
Timing, Priority Dates & Concurrent Filing
Priority date (PD) is set by the PERM filing date (EB-2/EB-3 with PERM) or I-140 filing date (EB-2 NIW). Concurrent filing of I-140 and I-485 is allowed only if your category/country is current for filing per USCIS’s monthly “which chart to use.” During retrogression, you may proceed with I-140 but must wait to file I-485.
Maintaining Status: 245(k), Cap-Gap & STEM OPT
- Be in status at I-485 filing. Employment-based applicants generally must be in lawful status; INA 245(k) can forgive up to 180 days of certain violations since last admission (use cautiously).
- Cap-Gap (F-1→H-1B). If selected for H-1B change-of-status, F-1/OPT may auto-extend (often to Sept 30) to bridge to H-1B start, subject to case outcome.
- STEM OPT. Eligible STEM grads can add a 24-month extension (total up to 36 months); a timely-filed extension allows up to 180 days continued work while pending.
“Immigrant Intent”, 90-Day Rule & Travel While Pending
F-1 is not dual-intent. Consular officers apply a “90-day rule” presumption for conduct inconsistent with nonimmigrant status (e.g., quickly pursuing permanent residence after entry). USCIS does not apply the rule mechanically, but misrepresentation risks can arise based on facts.
Step-by-Step Checklists
- Define national-interest project; gather evidence (publications, patents, grants, pilots, expert letters).
- File I-140 (NIW) → PD set at filing. Consider Premium Processing if available.
- When PD is current per USCIS chart, file I-485 (+ I-765/I-131 for EAD/AP, optional).
- Prevailing wage → recruitment → PERM (ETA-9089) filing & certification.
- Employer files I-140 (regular or premium).
- File I-485 when PD current (concurrent filing only if current at filing time).
EB-2 vs EB-3 for International Students
| Factor | EB-2 (incl. NIW) | EB-3 |
|---|---|---|
| Who typically qualifies? | Advanced degree or exceptional ability; NIW waives job offer/PERM. | Skilled workers (2+ yrs), professionals (B.A./B.S.), other workers. |
| PERM required? | Yes, unless NIW. | Yes, always. |
| Employer sponsorship | Required except NIW (self-petition). | Required (employer files PERM & I-140). |
| Typical for F-1/OPT | NIW for researchers/entrepreneurs in nationally important areas; or PERM with sponsoring employer. | PERM from OPT/STEM OPT employer for role aligned with degree/experience. |
| I-485 filing | When PD current per Visa Bulletin/USCIS chart; concurrent filing only if current. | Same rule. |
| Status issues | Must be in status at filing; 245(k) may forgive limited violations. | Same. |
Fees, Premium Processing & Timelines (2025)
- Premium Processing (I-907): available for most I-140 categories (including EB-2/EB-3) and some I-539/I-765 classes under posted windows; confirm current fees before filing.
- PERM timing: prevailing wage → recruitment → adjudication precede I-140; start early to align with OPT/STEM OPT runway.
- Visa Bulletin: monitor monthly cut-offs and USCIS’s “which chart to use” to plan concurrent filing or I-485 timing.
Common Pitfalls & How to Avoid Them
- Assuming F-1 is dual-intent. After I-140/I-485, re-entry on F-1 may be scrutinized; avoid travel or carry strong nonimmigrant-intent evidence. With I-485 pending, use AP.
- Status lapses. Track OPT/STEM OPT dates precisely; use cap-gap if moving to H-1B; understand 245(k) limits with counsel.
- PERM delays. Begin prevailing wage early; recruitment/audits can stretch timelines.
- Wrong chart for filing. Always confirm whether USCIS allows “Dates for Filing” instead of “Final Action.”
FAQ (2025)
Yes. I-140 is an immigrant petition and does not itself grant status. Maintain F-1/OPT (or other valid status) until eligible to file I-485.
Yes, if you are eligible to adjust and your PD is current under USCIS’s chart for that month.
Consider STEM OPT (if eligible) or H-1B cap-gap. If a gap occurs, INA 245(k) may forgive up to 180 days of certain violations — seek legal advice.
It depends on your record and U.S. benefit. Early-career researchers/entrepreneurs with a strong project and evidence can qualify.
Yes, but I-140 approval doesn’t authorize re-entry. If an I-485 is pending, use Advance Parole (or H/L exception) for travel.
Government Sources & Further Reading
- USCIS — EB-2 Overview (eligibility; NIW basics).
- USCIS — EB-3 Overview (skilled/professional/other worker).
- DOL — PERM Program (prevailing wage, recruitment, ETA-9089).
- DOS — Visa Bulletin (monthly EB cut-offs).
- USCIS — Which Chart to Use (concurrent filing rules).
- USCIS Policy Manual — INA 245(k) (180-day forgiveness scope).
- USCIS — Cap-Gap (F-1/OPT to H-1B bridge).
- USCIS — STEM OPT 24-Month Extension.
- DOS — 9 FAM 302.9 (90-day rule guidance for consular officers).
- USCIS — While I-485 Pending (travel & AP).
- USCIS — Premium Processing (I-907) (availability/fees).
