F-1 Status, AOS, AP and EAD
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eugene_lyubov
Registered Users (C)
There is debate in the immigration law community whether one ought to lose F-1 status upon applying for AOS. Some say yes, others no. I will post a link to legal commentary on this issue later when I get home. There is no debate, however, that once you use AP you lose your F-1.
Whether you will lose your F-1 while applying for AOS will ultimately depend on a given officer processing your application. I know many international students who kept their F-1 while their AOS was pending.
Another important reminder: If F-1 holder's AOS is denied, it will be fairly difficult, if not impossible, to renew your F-1 since it is premised on the non-immigration intent which the AOS applicant has clearly shown.
Whether you will lose your F-1 while applying for AOS will ultimately depend on a given officer processing your application. I know many international students who kept their F-1 while their AOS was pending.
Another important reminder: If F-1 holder's AOS is denied, it will be fairly difficult, if not impossible, to renew your F-1 since it is premised on the non-immigration intent which the AOS applicant has clearly shown.
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I am a F1 student and i mailed the I-130, I-485 and I-765 on march 14.
To answer your question the impression i was given from speaking to a lawyer is when you get married or have the intent of marrying a USC you lose your non-immigrant status. therefore whether its a f1, j1 etc are no longer valid. I agree with eugene that this part is somewhat of a grey area and totally dependent on the processing officer
To answer your question the impression i was given from speaking to a lawyer is when you get married or have the intent of marrying a USC you lose your non-immigrant status. therefore whether its a f1, j1 etc are no longer valid. I agree with eugene that this part is somewhat of a grey area and totally dependent on the processing officer
Thank you guys for your reply.
So to sum up, there is still debate if F-1 can keep their status while AOS, but he/she will definitely lose status after using AP. Sigh.. I will have to use AP, and my husband and I are temporarily not living together coz I will get my phd degree soon and move CA where my husband works. So I am afraid that there would be some problem for couples not living together.
So to sum up, there is still debate if F-1 can keep their status while AOS, but he/she will definitely lose status after using AP. Sigh.. I will have to use AP, and my husband and I are temporarily not living together coz I will get my phd degree soon and move CA where my husband works. So I am afraid that there would be some problem for couples not living together.
eugene_lyubov
Registered Users (C)
Here is the link I promised. It is on the subject of filing for I-140 while on F-1 but there is a lot there that is relevant to applying for AOS via I-130 while on F-1. http://www.hooyou.net/f-1/140filing.htm
Herein pasted is the most relevant info:
"There have always been disagreements among immigration practitioners as to whether and how the filing of I-140 affects F-1 student's status.
1. Opinion A
Some read the law very strictly. They interpret maintaining of F-1 student status as having to fit into F-1 nonimmigrant definition stipulated in INA ╖101(a)(15)(F)(i). With this understanding, F-1 students must demonstrate non-immigration intent throughout their stay in the United States to keep their F-1 status. Therefore, the filing of I-140 by an F-1 student, which clearly shows one's immigration intent, would constitute failure to maintain F-1 status.
2. Opinion B
Some others agree that maintaining F-1 status means one has to be within the F-1 nonimmigrant definition as stipulated by law throughout his stay in the U.S. However, they do not agree with the out of status by operation of law theory. Instead, they assert that although F-1 student who files I-140 fails to maintain his F-1 status, he won't be out of status until the USCIS makes an affirmative finding that revokes his F-1 status.
3. Opinion C
The rest believe non-immigration intent is only required at the time of applying for visa and the time of admission. They further claim that the filing of I-140 does not constitute failure to maintain status for F-1 students because such filing has no conflict with "making normal progress toward completing a course of studies", which is the only thing required to maintain F-1 status as stipulated by immigration regulations. With this understanding, F-1 students who file an I-140 do not fail to maintain their F-1 status because of such filing. The best support of this opinion is the fact that the INS (now the USCIS) has not made any ruling based on the interpretations of Opinion A or B.
F-1 Visa Extension
F-1 students who want to travel abroad sometimes may need an F-1 visa to come back to the U.S. if their original F-1 visas have expired. However, if they file an I-140, the immigration intent shown in such filing, contrary to the non-immigration intent explicitly required by the F-1 visa issuance, makes it extremely difficult, if not impossible, for them to get an F-1 visa. All three above opinions have no disagreement in this regard.
IV. Special Issues Relating to I-140/I-485 Concurrent Filing
Effective July 31, 2002, a new interim rule allows the concurrent filing of an I-485 adjustment of status application with an I-140 immigration petition, which adds more twists to the petitioners who are in F-1 status.
Stay in the United States after I-485 Is Denied
Opinion A believes that F-1 students who file an I-140/I-485 concurrently can no longer stay in the U.S. if their I-485s are denied while they are still in school. Opinion B claims that whether F-1 students who file I-140/I-485 concurrently and whose I-485s are denied by the USCIS while they are still in school, can stay in the U.S. to finish studies depends on a USCIS finding. Opinion C asserts that F-1 students surely can stay in the U.S. to finish their studies, even though they file I-140/I-485 concurrently and their I-485s are denied while they are still in school.
Advanced Parole
F-1 students who file I-140/I-485 concurrently may apply for advanced parole to travel abroad and come back to the United States. It is clear that if an F-1 student reenters the U.S. by using advanced parole as benefit of I-485 filing, he no longer has the F-1 student status and can only remain in the U.S. on I-485 pending status. All three opinions agree on this issue.
V. Conclusions
With regard to the question as to whether, by filing I-140, or concurrently with I-485, F-1 students are out of status remains unclear as nobody knows how the SEVIS system integrates into other USCIS systems, if at all, although the USCIS practices to date seem to support the opinion that such filing does not constitute failure to maintain F-1 status.
In any event, F-1 students filing I-140s should be aware of the following consequences:
1. They are highly unlikely to get their OPT applications approved by the USCIS.
2. It is extremely difficult, if not impossible, for them to get an F-1 visa to come back to the U.S. if they travel abroad.
3. They will be denied to come back to the U.S. by using their I-94 cards or non-expired F-1 visas after their trips to Canada or Mexico.
4. Their applications to change to non-immigrant status not allowing dual intent are not likely to be approved.
5. Whether they can change to non-immigrant status allowing dual intent is unclear.
Meanwhile, F-1 students who file I-485 concurrent with I-140 should be aware of the following consequences:
1. If they do not use advanced parole or EAD, and their I-485s are denied while they are still in school, whether they can remain in the U.S. to finish studies remains unclear.
2. If they use advanced parole or EAD as benefits of I-485 filing, they are no longer in F-1 student status, rather, they would be in I-485 pending status, which means if the I-485 petition is denied before the completion of their studies, they can no longer stay in the U.S. to finish the program and have to leave the U.S.
3. They are not eligible for getting OPT and changing to other non-immigrant status that does not allow dual intent.
4. Whether they are eligible for changing to non-immigrant status that allows dual intent is still unclear."
Herein pasted is the most relevant info:
"There have always been disagreements among immigration practitioners as to whether and how the filing of I-140 affects F-1 student's status.
1. Opinion A
Some read the law very strictly. They interpret maintaining of F-1 student status as having to fit into F-1 nonimmigrant definition stipulated in INA ╖101(a)(15)(F)(i). With this understanding, F-1 students must demonstrate non-immigration intent throughout their stay in the United States to keep their F-1 status. Therefore, the filing of I-140 by an F-1 student, which clearly shows one's immigration intent, would constitute failure to maintain F-1 status.
2. Opinion B
Some others agree that maintaining F-1 status means one has to be within the F-1 nonimmigrant definition as stipulated by law throughout his stay in the U.S. However, they do not agree with the out of status by operation of law theory. Instead, they assert that although F-1 student who files I-140 fails to maintain his F-1 status, he won't be out of status until the USCIS makes an affirmative finding that revokes his F-1 status.
3. Opinion C
The rest believe non-immigration intent is only required at the time of applying for visa and the time of admission. They further claim that the filing of I-140 does not constitute failure to maintain status for F-1 students because such filing has no conflict with "making normal progress toward completing a course of studies", which is the only thing required to maintain F-1 status as stipulated by immigration regulations. With this understanding, F-1 students who file an I-140 do not fail to maintain their F-1 status because of such filing. The best support of this opinion is the fact that the INS (now the USCIS) has not made any ruling based on the interpretations of Opinion A or B.
F-1 Visa Extension
F-1 students who want to travel abroad sometimes may need an F-1 visa to come back to the U.S. if their original F-1 visas have expired. However, if they file an I-140, the immigration intent shown in such filing, contrary to the non-immigration intent explicitly required by the F-1 visa issuance, makes it extremely difficult, if not impossible, for them to get an F-1 visa. All three above opinions have no disagreement in this regard.
IV. Special Issues Relating to I-140/I-485 Concurrent Filing
Effective July 31, 2002, a new interim rule allows the concurrent filing of an I-485 adjustment of status application with an I-140 immigration petition, which adds more twists to the petitioners who are in F-1 status.
Stay in the United States after I-485 Is Denied
Opinion A believes that F-1 students who file an I-140/I-485 concurrently can no longer stay in the U.S. if their I-485s are denied while they are still in school. Opinion B claims that whether F-1 students who file I-140/I-485 concurrently and whose I-485s are denied by the USCIS while they are still in school, can stay in the U.S. to finish studies depends on a USCIS finding. Opinion C asserts that F-1 students surely can stay in the U.S. to finish their studies, even though they file I-140/I-485 concurrently and their I-485s are denied while they are still in school.
Advanced Parole
F-1 students who file I-140/I-485 concurrently may apply for advanced parole to travel abroad and come back to the United States. It is clear that if an F-1 student reenters the U.S. by using advanced parole as benefit of I-485 filing, he no longer has the F-1 student status and can only remain in the U.S. on I-485 pending status. All three opinions agree on this issue.
V. Conclusions
With regard to the question as to whether, by filing I-140, or concurrently with I-485, F-1 students are out of status remains unclear as nobody knows how the SEVIS system integrates into other USCIS systems, if at all, although the USCIS practices to date seem to support the opinion that such filing does not constitute failure to maintain F-1 status.
In any event, F-1 students filing I-140s should be aware of the following consequences:
1. They are highly unlikely to get their OPT applications approved by the USCIS.
2. It is extremely difficult, if not impossible, for them to get an F-1 visa to come back to the U.S. if they travel abroad.
3. They will be denied to come back to the U.S. by using their I-94 cards or non-expired F-1 visas after their trips to Canada or Mexico.
4. Their applications to change to non-immigrant status not allowing dual intent are not likely to be approved.
5. Whether they can change to non-immigrant status allowing dual intent is unclear.
Meanwhile, F-1 students who file I-485 concurrent with I-140 should be aware of the following consequences:
1. If they do not use advanced parole or EAD, and their I-485s are denied while they are still in school, whether they can remain in the U.S. to finish studies remains unclear.
2. If they use advanced parole or EAD as benefits of I-485 filing, they are no longer in F-1 student status, rather, they would be in I-485 pending status, which means if the I-485 petition is denied before the completion of their studies, they can no longer stay in the U.S. to finish the program and have to leave the U.S.
3. They are not eligible for getting OPT and changing to other non-immigrant status that does not allow dual intent.
4. Whether they are eligible for changing to non-immigrant status that allows dual intent is still unclear."
eugene_lyubov
Registered Users (C)
xyz66 said:
You should not have inordinate problems, if any. Even if you use your AP, you will still be in status while your AOS is pending. They should not deny your application because you live apart from your spouse IF you explain to them why you need to live apart. It could be helpful if you get a letter from your dissertation advisor or Ph.D. program director that reports good progress on your studies and briefly explains why it is necessary for you to stay at the University to finish your degree (e.g. access to advisor(s), library research, financial support etc.)
Thank you so much for your detailed info, Eugene.
hi Eugene,
Thank you so much for your detailed information, which is very helpful. Your suggustion of asking my advisor to write a letter is cool. I will for sure follow it, but I have a question, does it just need to be a regular letter or it has to be a letter of Affidavit which need notorization?
Also, what should we do if the immigration officer ask then why your husband should not move to Texas? (my husband owned a house in CA and he works there, so it's not convenient to change the job and sell the house etc, is it good reason, or immigration officer would expect more? )
Thanks again!
hi Eugene,
Thank you so much for your detailed information, which is very helpful. Your suggustion of asking my advisor to write a letter is cool. I will for sure follow it, but I have a question, does it just need to be a regular letter or it has to be a letter of Affidavit which need notorization?
Also, what should we do if the immigration officer ask then why your husband should not move to Texas? (my husband owned a house in CA and he works there, so it's not convenient to change the job and sell the house etc, is it good reason, or immigration officer would expect more? )
Thanks again!
if you are in AOS status, and you leave the States without AP, you forfeit your AOS application. It's that simple.
You can maintain your F-1 status while on AOS, if you do not use your EAD and AP.
Intent to marry USC or marrying USC doesn't cancel your F-1 or J-1 status. That's absurd. Two of my friends who have been married to USCs for a number of years still maintain their J-1 status (while they are waiting for HRR waiver). I maintained my F-1 status for a year after my marriage to a USC, half a year after I-130 was filed for me and 2 months after I-485 was filed for me.
Lawyers are sometimes very incompetent, or tell you what you want to hear. Check www.uscis.gov and www.travel.state.gov, don't rely on your lawyer's word alone.
You can maintain your F-1 status while on AOS, if you do not use your EAD and AP.
Intent to marry USC or marrying USC doesn't cancel your F-1 or J-1 status. That's absurd. Two of my friends who have been married to USCs for a number of years still maintain their J-1 status (while they are waiting for HRR waiver). I maintained my F-1 status for a year after my marriage to a USC, half a year after I-130 was filed for me and 2 months after I-485 was filed for me.
Lawyers are sometimes very incompetent, or tell you what you want to hear. Check www.uscis.gov and www.travel.state.gov, don't rely on your lawyer's word alone.
eugene_lyubov
Registered Users (C)
xyz66: As long as the letter your advisor provides is on official university letterhead, it's fine. It's not risky to use AP. You will be admitted back into the country, though you will most likely lose your F-1 status (see link above). About your husband: Obtain evidence of house ownership, employment letter and other things that tie your husband to his current location. When will you finish your dissertation? By the time of your actual interview, you may as well have finished your studies and relocated to CA.
Lucy: Losing one's current nonimmigrant status (e.g. F-1) after having actually applied for AOS (not waiting for J-1 212(e) two-year rule waivers) is not "absurd." It happens, if rarely. If it was absurd, there would not be so much debate about it, in both government and legal community. The fact that someone may lose their current status is not something an applicant would like to hear from a lawyer. It's quite the reverse--it's the lawyer who would like to hear this because then there is a possibility for a greater need of his/her services. The applicant would rather hear the positive, i.e. "no worry, you'll be fine."
Lucy: Losing one's current nonimmigrant status (e.g. F-1) after having actually applied for AOS (not waiting for J-1 212(e) two-year rule waivers) is not "absurd." It happens, if rarely. If it was absurd, there would not be so much debate about it, in both government and legal community. The fact that someone may lose their current status is not something an applicant would like to hear from a lawyer. It's quite the reverse--it's the lawyer who would like to hear this because then there is a possibility for a greater need of his/her services. The applicant would rather hear the positive, i.e. "no worry, you'll be fine."
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applicant0205
Registered Users (C)
F1->I-130/I-485 AOS->H-1B???
Hi Guys
You all seem to be very knowledgeable on the topic of changing from non-immigrant to immigrant status. I would appreciate your opinion on my situation: My current EAD based on F1/OPT expires on May 31, 2005. I applied for AOS (I-130/I-485/I765) based on marriage to USC and my Notice Date is 03/16/2005. Based on the current processing times I am not confident that I'll get my new EAD by June 1, 2005. I have a job and I really don’t want to take time off until I get the new EAD. Does anyone know if my employer can apply for H-1B now that I have already applied for AOS, i.e. immigrant status versus the non-immigrant status of H-1B? Please share your thoughts and experience.
Thanks
Hi Guys
You all seem to be very knowledgeable on the topic of changing from non-immigrant to immigrant status. I would appreciate your opinion on my situation: My current EAD based on F1/OPT expires on May 31, 2005. I applied for AOS (I-130/I-485/I765) based on marriage to USC and my Notice Date is 03/16/2005. Based on the current processing times I am not confident that I'll get my new EAD by June 1, 2005. I have a job and I really don’t want to take time off until I get the new EAD. Does anyone know if my employer can apply for H-1B now that I have already applied for AOS, i.e. immigrant status versus the non-immigrant status of H-1B? Please share your thoughts and experience.
Thanks
anti-climacus
Registered Users (C)
"You cannot apply for H-1B, or any other visa for that matter, while your AOS is pending." I stand corrected!!! It is possible, though not always the best option, to apply for H-1B while AOS is pending. Go to google/yahoo and type in "apply for h1b while aos i-485 is pending" and you will see several Q&A's on discussion boards devoted to that issue.
e.g. http://www.kamya.com/intro/dv_faq.html
e.g. http://www.kamya.com/intro/dv_faq.html
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Thank you, Eugene, one more question.
Thank you for your information again. Yeah, I know there is not too much risk involving in using AP. I was saying that I am worried about the interview because the living apart thing, we are genuinely married though. And i am afraid that after I use AP, and I don't have student status anymore, what if interview failed, I cannot even finish my degree(I have still about one year to go), and also no chance to appeal? Many thanks.
Thank you for your information again. Yeah, I know there is not too much risk involving in using AP. I was saying that I am worried about the interview because the living apart thing, we are genuinely married though. And i am afraid that after I use AP, and I don't have student status anymore, what if interview failed, I cannot even finish my degree(I have still about one year to go), and also no chance to appeal? Many thanks.
applicant0205 said:
Hi,
I totally understand that you don't want to take time off, but it's better for you to be patient and wait until you get your EAD card.
One of my friends, who used to be a F-1 student, gained an OPT, then applied for GC through marriage after her OPT got expired, wanted to continue working at the same company while she was waiting for her new EAD card . But she wasn't sure if she could continue working at the same company w/o her work permit so she contacted her lawyer.
Her lawyer told her that it wasn't totally illegal for her to work for the company w/o a work permit because she was in the process of getting a green card. However, even though it was ok for her to work for the company, her employer would get arrested because it is illegal for any companies to give salary to aliens who don't have a work permit.
All I can say is that if you want to work, you can work. But if you want to work, you should work for free.
And your employer can't apply for an H-1B for you because you've already applied for GC. So if you want to work, you can work for free. But if you don't want to work for free, you just need to relax and enjoy your time off
xyz66 said:
Hi,
Once you applied for AOS, it means you agreed to change your status from F-1 to GC by signing your name. So I don't think you can keep your F-1 status after you applied for AOS. But, why do you want to keep your F-1 status anyway? If you are an immigrant student, you can do more flexibile things such as taking classes as part-time, working off campus, and paying less money for the tuition and other fees. So I just don't know why you want to keep your F-1 status. My friend, who is currently taking a Ph.D program and who applied for AOS last year, has already changed her status from a non-immigrant to immigrant status at her school by submitting some documents proving that she is in the process of getting a green card at the International Office. She didn't say anything about changing her status from F-1 to GC could cause some kind of problem. So I don't know why you want to keep your F-1 status.
And another thing that I want to say to you is that you worry too much. Just relax. If you can prove the reasons why you and your husband need to live apart, you will be fine. Don't give too much stress to yourself. Just relax and have faith that you can pass your GC interview because the relationship between you and your husband is truly based on love.
Eugene has given a great information for you. So take the advice. And if you still don't get any satisfaction from this thread, call the USCIS National Customer Service Center, or ask an adviser at the Inetrnational Office at your school, or you can find an immigration lawyer who could answer the kind of question. I think the International Office knows some immigration lawyers so call or visit the Intenational Office if you want accurate information.
And I have seen other questions of yours under this category. I know it's stressful to deal with this GC stuff, but you sometimes need to relax and be patient .
applicant0205
Registered Users (C)
thanks
thanks. I'll definitely check it out.
anti-climacus said:
thanks. I'll definitely check it out.
anti-climacus
Registered Users (C)
applicant0205 said:
Though it may be possible, if I were you, I still wouldn't do it. If you already had an H-1B, renewing it would be much simpler, but since you don't and need to actually obtain one, it may complicate things for your current AOS. If you are really keen on keeping your present job, perhaps you could work, as was suggested earlier, for free--since your EAD is pending, you may have to do it only for a month or so, if at all. Why complicate and potentially jeopardize your status if you are already so close to having things straightened out through regular procedures?! (You could also save some money by avoiding legal services, unless they are provided gratis through your company.)
how safe is it to travel on AP???
i finished my degree in 5/2004 and am current on a OPT valid till 7/04 and ont have a job. got married in 12/2004 to USC and applied for AOS/EAD/AP. got a new EAD and AP in 2/2005. will start a new job in 7/05. wish to travel to india either in 6/05 or 10/05.
how risky is it if i travel to india now? which EAD should i show when i come back (OPT/AOS). can i be bared from entering even if i have AP as i have no job.
how late is the online notification system? seems to be atlease 1-2 months. what is the AOS process. do you get a stamp on passport at the time of interview? what if AOS-GC dont happen till 10/2004. will it be safer to travel then (i will be on a job then)
help will be appreciated
i finished my degree in 5/2004 and am current on a OPT valid till 7/04 and ont have a job. got married in 12/2004 to USC and applied for AOS/EAD/AP. got a new EAD and AP in 2/2005. will start a new job in 7/05. wish to travel to india either in 6/05 or 10/05.
how risky is it if i travel to india now? which EAD should i show when i come back (OPT/AOS). can i be bared from entering even if i have AP as i have no job.
how late is the online notification system? seems to be atlease 1-2 months. what is the AOS process. do you get a stamp on passport at the time of interview? what if AOS-GC dont happen till 10/2004. will it be safer to travel then (i will be on a job then)
help will be appreciated