Risk of using AP with my situation (Advise Please!)

[jerryexyip 0]

This is my wife situation

-she came to U.S as a F1 student two years ago.

1. She graduated as an undergraduate in 2011, MAY.

2. Applied for OPT, received an EAD Card on July

3. Married to an US Citizen(me) on late Sep

4. Applied for AOS Late October (130,485,131,765)

5. received Biometric app couple days ago, but she just did a walk-in today

6. Infopass on this following Monday, becase her grandfather, who is in his 80's will be performing a surgery (not serious), even that, she wanted to be with him, hence, hoping to expediate 131.

My question is, with/without expediate 131, what is the risk of her leaving US with an approved AP and other application pending? Based on the status given above, did she overstayed in US? I was told that if a person was overstayed, even with AP, she might not be able to re-entry US.

Any help would be appreciated!

Thank you so much!

[jerryexyip 0]

Additional information

I was told that when she received her EAD card, she has 3 month to find a job, otherwise she has to leave US. Based on this, did she overstayed?

[Darnell 8,479]

Suggest she not leave the country until she has either:

-I-551 stamp in passport with a date later than today or

-greencard in hand.

She's in a slippery slope for overstay vs AP, based on her prior visa type and the current AOS case.

Edited November 18, 2011 by Darnell

[Nina~ 431]

The thing about F1 visas are that it is a fuzzy gray area on when they start accruing overstay. From what I have heard, each IO calculates it differently. But in your wife's case, she should be fine since her status has been "frozen" once she applied for AOS. However, she should not travel without an AP.

[jerryexyip 0]

The thing about F1 visas are that it is a fuzzy gray area on when they start accruing overstay. From what I have heard, each IO calculates it differently. But in your wife's case, she should be fine since her status has been "frozen" once she applied for AOS. However, she should not travel without an AP.

Right, so my question is, based on her status and your comment, wt would be the risks when she travel with an Approved AP?

[jerryexyip 0]

Suggest she not leave the country until she has either:

-I-551 stamp in passport with a date later than today or

-greencard in hand.

She's in a slippery slope for overstay vs AP, based on her prior visa type and the current AOS case.

Thanks for the Info.

What is I-551? Where can she get that?

If we wait for the greencard, based on the avg processing time, it would take a year?

I really want her to go back to china like... next month, is a small surgery, but incase anything happen, i dont want her to have any regrets...

[Little_My 464]

It's hard to say if she occurred overstay based on that timeline. If her OPT was approved in July, she had 90 days from that to find a placement - so until September/October, depending when in July EAD was issued. Her new period of authorized stay began when USCIS acknowledged receiving your package, and that date would be on the first NOA you received. If the 90 day period she had to find an OPT placement ran out before the day USCIS got your papers, then technically she was out of status for those days in between. However, my understanding is that she did not start accumulating actual overstay unless her SEVIS record was cancelled, which you did not mention.

I doubt that her possible overstay of few days would be an issue - but if you want to play it safe, then it is always better to wait for the GC to travel. If she does choose to go to see her grand father with a pending AOS, she absolutely should not leave without the AP. If she does, her AOS will be concidered abandoned and she won't be able to return to the US.

I-551 is a stamp that you can get after your GC has been approved, but before the physical card has arrived. You cannot get that without an approval of the AOS. Average processing time for AOS is somewhere around 4-6 months, so probably not a year - but it won't help you for this particular matter.

Edited November 18, 2011 by Little_My

[jerryexyip 0]

It's hard to say if she occurred overstay based on that timeline. If her OPT was approved in July, she had 90 days from that to find a placement - so until September/October, depending when in July EAD was issued. Her new period of authorized stay began when USCIS acknowledged receiving your package, and that date would be on the first NOA you received. If the 90 day period she had to find an OPT placement ran out before the day USCIS got your papers, then technically she was out of status for those days in between. However, my understanding is that she did not start accumulating actual overstay unless her SEVIS record was cancelled, which you did not mention.

I doubt that her possible overstay of few days would be an issue - but if you want to play it safe, then it is always better to wait for the GC to travel. If she does choose to go to see her grand father with a pending AOS, she absolutely should not leave without the AP. If she does, her AOS will be concidered abandoned and she won't be able to return to the US.

I-551 is a stamp that you can get after your GC has been approved, but before the physical card has arrived. You cannot get that without an approval of the AOS. Average processing time for AOS is somewhere around 4-6 months, so probably not a year - but it won't help you for this particular matter.

Wow thanks for the generous advices!! Helpful!

Her EAD was issued in July, and i believe the date we first submitted should be within 90days range. Not sure what you meant by SEVIS record...isn't her all previous status (OPT, F1..etc) would be cancelled/removed once we applied for AOS?

[Little_My 464]

Yes, her F1 status expired when AOS was received - but if the 90 days ran out before USCIS acknowledged your application, she would not have yet entered the new period of authorized stay that comes with filing AOS. SEVIS is Student and Exchange Visitor Information System, and the international student advisers of her school update information on foreign students, their visa status, I-20 etc. in that system. Once someone's SEVIS record is cancelled, their former student/exchange visitor status is no longer valid.

Currently she is under authorized stay due to the AOS. It doesn't mean she didn't accumulate some overstay in between her F1 and AOS, but even if she did, I highly doubt it would be enough to matter. Most likely she did not.

[Brother Hesekiel 2,236]

" . . . . becase her grandfather, who is in his 80's will be performing a surgery (not serious), even that, she wanted to be with him, hence, hoping to expediate 131.

Is she going to medical school? If not, she has plenty of time to observe surgeries, especially "not serious" ones.

I'd suggest to prioritize immigration over education right now. She can do whatever she wants once she has a Green Card.

[bigdog 376]

Do not leave without your AP.