Sm1smom
Super Moderator
There’s no point in trying to put the cart before the horseIMO. I think you and your daughter should wait first and see if she’s selected before trying to unravel the layers that may or may be applicable to her situation.
DV 2023 AOS (Adjustment of Status) Only
- Thread starter Sm1smom
- Start date
SusieQQQ
Well-Known Member
Re 1, as I said I don’t know the technicalities of OPT and d/s. However you do need to consider that out of status is not limited to being in overstay. If you were on F1 or F1 OPT, there would have been certain requirements in terms of classes /attendance or OPT work that you would have had to meet to stay in status, in my understanding. If you did not then you would have been out of status even if you did not technically overstay.
I am sure the response I am going to get will be the same as Jim Bob's responses, but just wanted to be 100% sure before changing our AOS to CP. So, back in 2015 my husband's H-1B visa expired on September 30 (I was on H-4 and going to college full time). Without getting an advice from the international office we applied for a change of status to F-1. However, my school start date on I-20 was January 11. Our case was denied in March and we left the country in April to get the student visa from our home country. We came back at the end of April with our new F-1 status. I am 100% sure that we were considered out of status between September and April, but just wanted to hear from others. The other thing is, we are scared to change to CP as we are scared to go back to our home country (dictatorship) because of political reasons. So, I am lost at this point.
As far as I know, as long as you timely filed your change of status, you were in a pending status. However, once you received your denial letter, that is when the out of status began. Also, I found something online that said if you left the U.S. while your change of status was pending (abandoning change of status), then that means you were never out of status. I'm not sure how true that is so maybe SuzieQQ can clear that up?
We are in the same position, scared to go back to our dictatorship country too. Very traumatic after the whole pandemic incident.
I never violated my student or OPT status, I worked for the same employer, and my then employer wanted to keep me on, however as it was the start of the pandemic all of the consulates were closed and flights back to my home country ceased for nearly two years and had no choice but to request COS.
Do you know if you are considered to be out of status if you timely filed a COS but left the country before the denial letter came? This was the case for my wife. We received out denial letters at separate dates to each other.
Also, if I were to do CP, must it be in my home country? I have not been back there in 7 years, and after leaving the States, I moved to Mexico and became a temporary resident there (I'll be renewing my residency there next year too). Would it be possible to do interview there if I am studying in the U.S.? Or do you think it is more appropriate to interview in home country?
Thanks!
SusieQQQ
Well-Known Member
This is the official USCIS explanation of how it works. The short version is that you are out of status when you overstay, or otherwise violate your status, until you get approved COS in which case it is retroactive back to the day you originally went out of status.
What if I file for change of status on time but USCIS does not make a decision before my I-94 expires?
Your lawful nonimmigrant status ends and you are out of status when your Form I-94 expires, even if you have timely applied
to change your nonimmigrant status. Generally, as a matter of discretion, USCIS will defer any removal proceedings until after
the petition is adjudicated and USCIS decides your change of nonimmigrant status request. Nevertheless, DHS may bring a removal proceeding against you, even if you have an application for change of status pending.
Even though you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Act, while your change of status application is pending if it was filed prior to the expiration of your Form I-94.
If your application for a change of status is approved, the change of status will relate back to the date your Form I-94 expired, and your status during the pendency of your application will then be considered to have been lawful.
If your application is denied, you may be required to depart the United States immediately.
You can do CP where you are resident.
What if I file for change of status on time but USCIS does not make a decision before my I-94 expires?
Your lawful nonimmigrant status ends and you are out of status when your Form I-94 expires, even if you have timely applied
to change your nonimmigrant status. Generally, as a matter of discretion, USCIS will defer any removal proceedings until after
the petition is adjudicated and USCIS decides your change of nonimmigrant status request. Nevertheless, DHS may bring a removal proceeding against you, even if you have an application for change of status pending.
Even though you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Act, while your change of status application is pending if it was filed prior to the expiration of your Form I-94.
If your application for a change of status is approved, the change of status will relate back to the date your Form I-94 expired, and your status during the pendency of your application will then be considered to have been lawful.
If your application is denied, you may be required to depart the United States immediately.
"How Do I" Guides for Nonimmigrants | USCIS
The items below explain how nonimmigrants can accomplish specific tasks through USCIS.
www.uscis.gov
Whike I don’t claim to be an authority on this, my understanding is the opposite. If you abandon it it cannot be approved, therefore it is impossible to have had the status reinstated. It may have been a confusion, as is common, of unlawful presence with out of status.
I’m not sure i’m reconciling this with your statements. If you stayed for 2 years and were maintaining all the requirements of being in status the whole time, what’s the problem? You presumably did not keep up with status requirememts at some stage or you wouldn’t be asking all these questions?
You can do CP where you are resident.
SebastianNY
Member
Hi all
I just want to make sure if I'm getting this right (in/out of status)
Currently on L-1A visa (valid till the end of 2024)
CN: EU25XXX ( so the current month will probably be around April 2023)
DS260 submitted/No 2NL yet, DV Adjustment of status for the whole family - paid/cashed by US DOS.
I have to travel to Canada for a couple of days in Nov ( business meetings); I understand that it won't affect anything as my month is not current and beside submitting DS260 and paying AOS's fee my process has not started yet ( package not sent etc )
Am I right?
I just want to make sure if I'm getting this right (in/out of status)
Currently on L-1A visa (valid till the end of 2024)
CN: EU25XXX ( so the current month will probably be around April 2023)
DS260 submitted/No 2NL yet, DV Adjustment of status for the whole family - paid/cashed by US DOS.
I have to travel to Canada for a couple of days in Nov ( business meetings); I understand that it won't affect anything as my month is not current and beside submitting DS260 and paying AOS's fee my process has not started yet ( package not sent etc )
Am I right?
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SusieQQQ
Well-Known Member
L1A is dual intent anyway so travel is ok even after you submitted the package.
Hello all, I have couple of questions regarding AOS and current visa status.
I was selected for DV2023 with low CN EUXXX current in October. In my application, my wife is dependent and we sent the AOS package at the beginning of November.
I am currently on H1B while (at the moment of the AOS package shipment) she was on J1. Since she is in US from 5yr, she had to change from J1 to H1B. Today she received the news that the H1B was approved and she has now the original copy of the form I-797A. My questions are:
1. does she need to communicate this change from J1 to H1B to the AOS office? Or is it ok to bring with us her I-797A at the interview?
2. Since she is now on dual intent visa, my question is about traveling. Would it be possible for her to travel outside US without the AOS to fail?
3. In case the response to the second question in yes, would be ok to go to the US consulate for visa stamp renewal, even if there is an ongoing AOS?
Thank you in advance
I was selected for DV2023 with low CN EUXXX current in October. In my application, my wife is dependent and we sent the AOS package at the beginning of November.
I am currently on H1B while (at the moment of the AOS package shipment) she was on J1. Since she is in US from 5yr, she had to change from J1 to H1B. Today she received the news that the H1B was approved and she has now the original copy of the form I-797A. My questions are:
1. does she need to communicate this change from J1 to H1B to the AOS office? Or is it ok to bring with us her I-797A at the interview?
2. Since she is now on dual intent visa, my question is about traveling. Would it be possible for her to travel outside US without the AOS to fail?
3. In case the response to the second question in yes, would be ok to go to the US consulate for visa stamp renewal, even if there is an ongoing AOS?
Thank you in advance
Sm1smom
Super Moderator
1. She does not need to communicate anything to USCIS at this point in time. She takes the new NOA to her interview.
2 & 3. This is dicey IMO. I wouldn’t contemplate traveling without an approved AP card at this point considering the AOS application was submitted while on a non-dual intent status. Getting a H1B visa stamp isn’t worth unintended issues that could subsequently arise following a departure from the US while the AOS application is pending IMO.
Thank you very much Mom!
Sm1smom
Super Moderator
I recommend having a consultation with an experienced immigration attorney to determine your eligibility to file for AOS before you proceed.
Hello everyone so I sent my DV $330 to the department of state via mail using a money order. I sent it August 17th 2022, and it has been three months now without getting a receipt. When I go to the USPS website to check the status of the money order, it says that it has been cashed. I emailed KCC last week to tell them about this, and they wrote the following: "KCC has received your request however, the payment has not been received. Please allow 2 to 3 weeks for payment processing. "
What does this mean? Do I have to pay it again? if it is cashed, then how come they didn't receive anything?
What does this mean? Do I have to pay it again? if it is cashed, then how come they didn't receive anything?
Do you recommend a consultation before I fill out DS-260?
Sm1smom
Super Moderator
No you do not have to make another payment. Don’t stress over the wording of the boiler plate response from KCC - they sometimes send a response which makes no sense to the inquiry. Give them like a week, then send a new email message requesting for a copy of your payment receipt be sent to you by email.
Sm1smom
Super Moderator
The purpose of the recommended consultation is to help you figure out if you’re eligible to process AOS or if CP is your only option, right? So you should be able to decide if you should wait on submitting the DS260 until after the consultation or not on your own.
The reason I asked the question is, as I know, DS-260 can be unlocked for a change after the submission. I did not want to delay DS-260 more than this as my friend who submitted her DS-260 last November (because of personal reasons) could not get a CP interview until early September despite the fact that her case number was EU5XXX. We will decide how to proceed tomorrow after a consultation with an attorney. Thank you for your help and patience.
Sm1smom
Super Moderator
Well you’ve already waited this long to submit the DS260 form, so it’s not like waiting (or not waiting) an additional 2 to 3 more days is likely to make much, if any, difference. Plus your there were other issues which affected the DV2022 processing, your friend waiting until November to submit their DS260 form for a relatively low CN) wasn’t the main reason they got the CP interview in September.
