J-1 visa - applying for AOS

[rubyred 0]

it's come to my attention that once i have filed for AOS, my J-1 visa status changes to 'pending adjustment': does this mean i have to quit working until my EAD arrives? my J-1 visa is good till july, and we were hoping to get this sorted before it expires so i wouldn't be unemployed for any length of time.

[Diazy 10]

You can work till July...

[rubyred 0]

i asked a 'lawyer' and got this response:

You still have your J1 status while your adjustment of status is pending until its expiration date. You may continue to work while you await your new EAD. Once you receive your new EAD, then you give that to your employer and they can complete a new I-9 for you.

Once your J1 status expires you are then in the "period of stay authorized by the Attorney General" and may remain in the US while awaiting adjustment.

BUT on VJ i found this:

H1B and other work visa notes: There is an USCIS exemption for H1 and L1 visa holders. The way this works is

this: even though you apply for adjustment of status, you keep your H-1 or L-1 status, UNLESS you USE a

marriage-based EAD card. What this means in real terms is that IF you do NOT use a marriage-based EAD

you are still H1 or L1 and CAN travel outside the US withOUT having advance parole. Of course, you would still

have to work for the H1 or L1 employer in this situation.

If you want/need to change employers, you can apply for the marriage-based EAD card when you file

adjustment of status (or any time after that), HOWEVER once you USE the marriage-based EAD card, your

status has effectively been changed to "pending adjustment" based on the marriage, and you WILL need

advance parole to travel outside/back into the U.S. The KEY POINT is that once you USE the marriage-based EAD, you

have changed your status from H-1 or L-1 at that time, and your new status is "pending adjustment based on

marriage to a US citizen".

this is confusing because it doesn't EXPLICITLY say you can't work, but there is definitely some kind of implication. diazy can you direct me to a USCIS link that's more specific?

your help is much appreciated!

[rubyred 0]

ok, i spoke to the same person and quoted the above info from the VJ site and this is the response i got:

They are discussing a completely different issue. H1B and L1A have the doctrine of dual intent attached to them. They can continue to extend their nonimmigrant status and visas even with the adjustment pending IF they don't use the EAD from the adjustment. If they do, they loose their H or L status and have to have advance parole to come back into the US and then they can no longer extend their H or L status or use it to enter the US.

They are talking about the issue of Advance Parole as it relates to H & L and the necessity for it if they use their EAD. But just like you they can use their visa status to continue to work. If they elect not to and use their EAD, then it raises an issue for them regarding entry after a trip abroad.

This has nothing to do with your J1 status which you cannot renew when it expires but which you may continue to use until your adjustment EAD is issued. You can't extend your status because you are an intending immigrant and there is no dual intent attached to the J1.

[Diazy 10]

i don't have USCIS link

So you have J1 status, which allowed you to work till July. So you can legally work till that time. After the expiration of your J1 you can't work legally, but you can stay legally in the USA based on your AOS filling.

If you got your EAD before July, you could show it at work. and since that your J1 status is changed to AOS pending. EAD gives you work authorization, so you can continue to work legally.

If you didn't get your EAD before July, you would need to quit your job till you'll get your EAD, because you wouldn't have work authorization. Your status also changed to AOS pending.

[rubyred 0]

thanks diazy, i was just really confused by the ambiguity: it says H and L and 'other work visas', and then talks about how your status changes once you file... i was a little panicked! it's a huge relief to know i can continue working and we can file as soon as possible.

[KIMCORENE 0]

thanks diazy, i was just really confused by the ambiguity: it says H and L and 'other work visas', and then talks about how your status changes once you file... i was a little panicked! it's a huge relief to know i can continue working and we can file as soon as possible.

Keep in mind, however, that a J visa is not considered a "work visa" in technical terms. I made the decision to discontinue my employment as soon as I filed for AOS last October, as I was under the impression that having applied to adjust status, I showed the intent to immigrate, thereby canceling out my J visa, which is not a dual intent visa, and therefore, no longer valid. But that was my choice, I'm not absolutely certain of the legal and technical aspects of the whole thing.

[rubyred 0]

once again, some DIFFERENT info, just to muddy the waters a bit further:

According to the DHS, once you apply for Adjustment of status you lose your current non-immigrant visa status and become 'pending adjustment of status'.

J-1 is a non-immigrant visa and 485 is an adjusting process. Therefore, you techically lose your J1 Status... BUT......

Under Section 214 of the Immigration and Nationality Act, (Act), most nonimmigrants who apply for adjustment of status to that of permanent residents of the United States are presumed to be intending immigrants and, therefore, are no longer eligible to maintain nonimmigrant status. Section 214(h) of the Act, however, permits aliens described in section 101(a)(15)(H)(i)of the Act, i.e., temporary workers in specialty occupations, intracompany managerial or executive transferees, and their depend ent spouses and children, to maintain their nonimmigrant status during the pendency of their applications for adjustment of status.

You can really take either answer from that ^

The Service has, traditionally, considered applying for adjustment of status as relevant evidence in determining whether an alien has abandoned the requisite nonimmigrant intent. Section 214 of the Act does not, however, require the Service to hold this position as an absolute rule. So long as the alien clearly intends to comply with the requirements of his or her nonimmigrant status, the fact that the alien would like to become a permanent resident, if the law permits this, does not bar the alien's continued holding of a nonimmigrant status.

Also of importance...

The USCIS may issue RFEs asking for an advisory opinion regardless of what is stamped on a J-1 visa. This is especially true once a person moves to a new institution, because such moves MUST be documented under the Department of Homeland Security SEVIS system, which means USCIS will know about it. The institution is responsible for updating the SEVIS system, not the J-1 visa holder.

found this in another forum whistling.gif

Now you ask if it's legal that you are still working in J status. The answer is that you are probably fine, since USCIS doesn't really enforce considering you to have abandoned your J status. This will change if you dare travel outside the US of course; if you leave the US it will be almost impossible to get back in with a J visa since you are clearly intended immigrants. But as long as you are still here, you should be okay staying on J-1 and you can keep using your ©(5) EAD for now. But make sure you have AP documents in case you need to travel. While your J-1 status right now is okay, your J visas in your passport is pretty much useless.

if there is ANYONE here who continued to work AFTER filing for AOS and WHILE they were still on a J-1 visa, can you please post here with your experience.

Edited March 2, 2009 by rubyred

[rubyred 0]

bumping this in the hope that someone can help.

also received this info, from a pretty rude 'lawyer' on justanswers.com, when i asked her to clarify and prove the claim she made that i CAN continue to work:

You are abolutely incorrect, the result of unauthorized employment is not denial of

AOS when that adjustment is based on marriage to a US citizen.

Read your own quote:

The Service has, traditionally, considered applying for adjustment of status as relevant evidence in determining whether an alien has abandoned the requisite nonimmigrant intent. Section 214(B) of the Act does not, however, require the Service to hold this position as an absolute rule. So long as the alien clearly intends to comply with the requirements of his or her nonimmigrant status, the fact that the alien would like to become a permanent resident, if the law permits this, does not bar the alien's continued holding of a nonimmigrant status.

Everything else you are referencing is applicable to H and L status. And about moving to different institutions and updating SEVIS. It is no wonder you are getting confused. You are taking bits and pieces of different laws.

[rubyred 0]

update:

my fiance called USCIS today and managed to get through to someone who was very knowledgeable: she told him that i CAN continue working on my J-1 visa (until it expires, or my EAD arrives) after we file AOS. my fiance asked her direct him to the specific law concerning this (we want hard evidence! we're a little paranoid) but she was unable to - she told him that while USCIS can advise, they can not provide the same kind of legal advice of a lawyer. so we'll probably consult with a lawyer, just so we have something on paper. we want to cover all our bases!

i just wanted to post this here in case anyone else comes to VJ looking for the same kind of information.

thank you to everyone who replied to my PMs - you were a great help and i appreciate you taking the time.

i think J visas must have different requirements in different countries, which is maybe a reason for the ambiguity surrounding them? for example, my J visa is, without exception, non-extendable and non-renewable. technically, it's not a work visa, which is also why it's not subject to the same rules and regulations as an H or L visa.

[YuAndDan 153]

Moving to Work/travel prior to green-card.

[RebeccaAndPhil 5]

I am in this SAME situation!! My fiancé is from Canada and he is on a J1 with a full-time job. He doesn't want to lose his job while waiting for his EAD. We will be getting married & filing for all of this around August..his J1 expires in April 2010, I am hoping this gives USCIS enough time to get his EAD to him in time so he can continue working!!

From what I've gotten out of this thread, my fiance CAN continue working until his J1 expires in April 2010, correct? I would assume that he should receive his EAD before then lol

[rubyred 0]

EAD is supposed to take no more than 90 days, but this isn't always the case from what i've read. one other thing: when we spoke to USCIS, they told us that yes you can continue to work BUT they couldn't point us to a specific law that proves this; this is why we will probably consult with a lawyer just to have it 'on paper' in case it does turn out to be a problem. we had the HARDEST time trying to find correct and concrete info on this topic!

[RebeccaAndPhil 5]

EAD is supposed to take no more than 90 days, but this isn't always the case from what i've read. one other thing: when we spoke to USCIS, they told us that yes you can continue to work BUT they couldn't point us to a specific law that proves this; this is why we will probably consult with a lawyer just to have it 'on paper' in case it does turn out to be a problem. we had the HARDEST time trying to find correct and concrete info on this topic!

Well if you find anything can you post it here? I will do the same! Or, you can pm me

[rubyred 0]

everything we've found so far, i've posted to this thread. we read through tons and tons and tons of immigration law... couldn't find anything concrete. as soon as you think you're in the clear, the next piece of law seems to contradict, or at least call into question, the last bit you read.