In need of advice for AOS from F1 student visa

[Issey 0]

Hi everyone, I would like to have some advice about my situation. Some background information about me:

• I have been on F1 student visa since 2004. I've always maintained my student status, traveled back and forth between my country and the States, and renewed my F1 visa about 7 times.
  
• October 2010: I got married to my husband (LPR/Green card holder)
  
• November 2010: we submitted I-130 form (I'm under F2A category)
  
• April 2011: NOA2, I-130 has been approved. It was saying that since I'm currently inside the country, I will be doing Adjustment of Status. My case was not forwarded to the NVC.
  

I understand that my priority date will not become current any time soon and yet I can't file I-485 for adjustment of status. The catch is: my husband can apply for his citizenship in September and I'm hoping that the process will take 4 months. With that assumption:

• September 2011: husband submitted N400
  
• Jan 2012: husband becomes a citizen and will upgrade the petition from F2A to IR
  

• I'm still going to school as a full-time student. The spring semester will begin on Jan. 25th, 2012. However, I'm planning on taking that semester off. My husband and I will have to pay the N400 and I-485 fees and I think it would be best if I can take a break to save some money.
  
  • 
    

  [*]Scenario 1: if my husband becomes a citizen before my semester starts, he will upgrade the petition and I can submit I-485 right after that and show the proof to the International Office. Is that right?

  [*]Scenario 2: what if my husband becomes a citizen after my semester starts and I'm not attending school, then I will be out of status ( presumably for about 30 - 60 days). If I stick to my plan, taking that semester off, gone out of status before husband is a citizen, will I be able to file AOS later?

  Thank you

Edited May 9, 2011 by superTM

[Brother Hesekiel 2,236]

From your post I can tell that you have a good understanding of the process.

Yes, once your husband becomes a US citizen, you will be the IR of a USC and thus are immediately eligible to file for AOS.

That alone doesn't give you any immigration status. For that to happen you need to file for AOS. But . . . the whole student thingi becomes pretty irrelevant at that point. Sure, you won't get a new I-20 from the school, but you don't need one anyway. "Out of status" means nothing at that point. The time it takes from your school reporting to USCIS that you've taking a break is longer than it takes for USCIS to process your AOS petition. Tuition-wise, you need to be a resident of your state for at least 1 year in order to qualify for in-state tuition, so it's up to the school if they treat you as a resident once you have your Green Card or insist that you need to pay another year out-of-state tuition.

You can go back to school at any time and you can file for AOS later, but while being out of status and not having filed for AOS, you are in a twilight zone in so far that you can be detained for being out of status and put in front of an immigration judge (very unlikely, unless you get in trouble with the law), yet the I.J. would let you go as you are eligible to file for AOS, and would order you to do so ASAP.

[Issey 0]

Just Bob, thank you for your advice. One quick question though: should I be quiet about taking that semester off, or should I be upfront and notify the International Office that I'm not taking classes for a semester... ?