Am I in legal status?

[Anonymous Guy 3]

My USC wife applied for my adjustment of status in November while I was in legal F-1 student status. Her I-130 petition for me has been approved, my I-865 (Employment Authorization) and I-131 (Advance Parole) were approved and I received my employment authorization card, which is also an advance parole card. I have been using my work authorization card to work full time as a computer programmer for a software company. Now my new semester is about to start in school and if I don't go to school full time, I will lose my F-1 Status. Will I still stay in legal status and be able to continue to work until my wife and I go for the green card interview? Our marriage is bona fide, so we aren't concerned about the interview. It's just the time before the interview that we are worried about. I can't go to school full time because I'm working full time. My wife doesn't work and I need to keep working to support both of us. Please kindly advise! Thank you so much for your time and consideration!

[Kathryn41 3,205]

Your F-1 status actually 'expired'/changed when the AOS package was accepted by USCIS. You are now in what is called a period of 'authorized stay' until USCIS makes a decision on your AOS (I-485) petition. If they approve it, then you will receive permanent resident status. If it is denied you will no longer have legal status in the US and will start to accrue out of status days. As your marriage is valid and you are employed in the US, so are allowed to use your earnings towards the Affidavit of Support (as long as the US based income will continue after you receive AOS you are allowed to use it), the likelihood of you being denied appears small. So, you're fine. As long as your AOS is waiting for adjudication, you are legally present in the US, and with the EAD, legally allowed to work. Once you receive the green card you will no longer need the EAD .

Good luck at the interview.

Edited January 21, 2013 by Kathryn41

[AnotherLostSoul 167]

Your F-1 status actually 'expired'/changed when the AOS package was accepted by USCIS. You are now in what is called a period of 'authorized stay' until USCIS makes a decision on your AOS (I-485) petition. If they approve it, then you will receive permanent resident status. If it is denied you will no longer have legal status in the US and will start to accrue out of status days. As your marriage is valid and you are employed in the US, so are allowed to use your earnings towards the Affidavit of Support (as long as the US based income will continue after you receive AOS you are allowed to use it), the likelihood of you being denied appears small. So, you're fine. As long as your AOS is waiting for adjudication, you are legally present in the US, and with the EAD, legally allowed to work. Once you receive the green card you will no longer need the EAD .

Good luck at the interview.

Actually, your F1 status did not expire/change when the AOS package was accepted by USCIS. It changes once you get your Green card and you report it to your local international office. I was on F1 status all the way until the day I've got my green card. Like even after the interview where I was approved on the spot the IO told me to wait for my GC before reporting that my F1 status should be canceled. It is the safest way to go. Because if OP gets denied, he/she simply can stay in the US as an F1 student as he/she was before. If he gives up his F1 status right after submitting AOS then basically if he is denied, then like you said, he has to leave. If he retains his F1 status until the physical card is in his hand he is safe. If gets the card, he can then go and report his F1 status cancellation, if he is denied, no problem he is on F1 and remains on F1 until he is registered as a full time student and does not violate his studies and his I-20 program ending date.

[Kathryn41 3,205]

I stand corrected on the F-1 issue. I see that it then raises additional concerns for the OP. If he needs to keep working, then he is not able to attend school and will lose the F-1. If he goes back to school, then he is not able to work, and will not have a source of income to use for the Affidavit of Support.

Either way, his original question was would he have legal status in the US if he does not go back to school. The answer is yes, he would. Once the AOS is accepted, if the F-1 status is given up, then he is present on a 'period of authorized stay'.

So, I guess it is up to the OP which road he wishes to walk since it appears he has at least 2 options, both of which keep him in legal status in the US.

[AnotherLostSoul 167]

I stand corrected on the F-1 issue. I see that it then raises additional concerns for the OP. If he needs to keep working, then he is not able to attend school and will lose the F-1. If he goes back to school, then he is not able to work, and will not have a source of income to use for the Affidavit of Support.

Either way, his original question was would he have legal status in the US if he does not go back to school. The answer is yes, he would. Once the AOS is accepted, if the F-1 status is given up, then he is present on a 'period of authorized stay'.

So, I guess it is up to the OP which road he wishes to walk since it appears he has at least 2 options, both of which keep him in legal status in the US.

Hey there: Okay, I see your point. Yes, in that case, you are right. If he needs to work and starts working without registering for classes, you are right, he does lose his F1 status. I thought first you meant that as soon as he files for AOS he loses his F1. That's what to what I replied to that he does not. But now I see what you meant. Thanks for the clarification...

[Harpa Timsah 13,258]

An F1 might not lose "status" but will lose the visa once they file AOS. They can remain in the US and continue to study, but they cannot travel internationally until they receive their Advance Parole from AOS. Just thought that should be clarified.

[Anonymous Guy 3]

Yes, but isn't working full time already in violation with F-1 student status?

By the way, thank you all once again for all your responses and time!

Also, I already have a sponsor. USCIS does not issue an employment authorization card without an eligible sponsor who has already submitted I-864.

And I already have Advance Parole, as I said.

[Harpa Timsah 13,258]

Yes working full time is a violation of your F1 status. I think maybe we missed that in your post.

Anyway, you are in a period of authorized stay due to your I-485 pending. You are allowed to stay here until a decision is made on it, you are in legal status.