What to tell my spouse's school?

[sparkling 0]

I'm a USC and my wife is here on an F1 visa. We applied I-485, I-130, I-765, I-131 and everything has been accepted and in process without RFE; we are currently waiting for our biometrics (ASC) appointment.

Here's my question: my wife doesn't want to go to school full-time anymore. The international adviser told her that she needs to stay full-time to maintain F1 status until she has a green card in her hand.

All of the NOAs state "THIS NOTICE DOES NOT GRANT ANY IMMIGRATION STATUS OR BENEFIT", and immigration law is complicated and can carry tremendous consequences, so we understand why the school's policy would be so.

Question: can my wife enroll in part-time status and officially lose her F1 status without repercussions since we're already in AOS process? She's looking to start work after this semester, through EAD, so she doesn't want to be burdened with full-time coursework. School starts this Monday, and refunds for decreasing units are only available the first week or so.

Thank you for your suggestions and input. VJ is tremendously helpful in our personal visa journey!

[Pitaya 2,577]

Here is the USCIS link about the F-1 Student Visa criteria for your review:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=e34c83453d4a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=e34c83453d4a3210VgnVCM100000b92ca60aRCRD

[sparkling 0]

Thank you! I understand those are the requirements for someone on F-1.

But does my wife's status switch over to another legal status during the I-485, I-130, I-765, I-131 application process? Because as stated, non-immigrants here on F-1 visa can not work. But once my wife receives an EAD, then she can work legally, and this is not through CPT, OPT, or STEM OPT (work experiences permitted through F-1/M-1 visas, as USCIS says at your link). And also, doesn't the immigrant intent through the I-485/I-130/marriage to a USC compromise the F-1 visa's non-immigrant intent status already?

[sparkling 0]

My conclusion: If there is no reason to believe our AOS application will be denied (we have every reason to believe it will be approved, smoothly--as we have a legitimate long-term relationship and submitted plenty of evidence), there seems to be no reason for my wife to unhappily stay a full-time student for the sake of maintaining F-1 status.

Does anyone disagree? And have justification why? Thank you!

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Interesting find: http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-8624/0-0-0-8666.html

--> The only reason to stay in F-1 status is if the AOS is denied. AOS does not compromise F-1 status. So if the immigrant is denied AOS, his/her F-1 status might be able to keep him/her here on legal status if the full-time student status is maintained. A denial decision procedure is explained:

If the adjustment application is being denied, the applicant is entitled to a clear explanation of the reasons why and to an opportunity to have the decision reviewed by either an immigration judge (as a renewed application in removal proceedings) or by the Office of Administrative Appeals (through certification of the decision if the alien is not being placed in such proceedings). There is no appeal from a denial of adjustment of status, except as provided in 8 CFR 245.1©(9)(viii) .

© Exceptions to Policy on Issuance of NTAs to Denied Applicants .

...

The alien is maintaining valid nonimmigrant status. Essentially, applying for adjustment or asylum does not necessarily end an alien's nonimmigrant status, since in and of itself, the filing of a permanent or temporary visa petition or the filing of an application for adjustment or asylum is an action which neither preserves nonimmigrant status, nor violates such status. It may be that the person can show that he fully intends to leave, if required to do so, should the attempt to become an LPR fail. It may be more difficult for some (B-2s, for example) to show that they really do intend to stay only if allowed to do so, but it's not impossible. There is a lengthy discussion of the effect of filing for asylum and employment authorization on nonimmigrant status contained in General Counsel Opinion 94-39. There is also an extensive discussion of the effect of filing an adjustment application on maintenance of nonimmigrant status in Matter of Hosseinpour , 15 I. & N. Dec. 191 (BIA 1975). There are a number of factors which must be taken into account when determining the impact of such filing on maintenance of nonimmigrant status, including (but not limited to):

...

– Whether the alien has continued to perform those duties or functions which are consistent with the nonimmigrant status (e.g., if admitted as nonimmigrant student, continuing to maintain a full course of studies).

...

[sparkling 0]

More personal interpretation (not legal advice): if the marriage to a USC is valid, I think it would be more difficult for a denied F-1 AOS applicant to show that he/she "fully intends to leave, if required to do so, should the attempt to become an LPR fail".

This leads me to believe that maintaining one's non-immigrant F-1 status is unnecessary when married to a USC. ...And, my wife can happily reduce her unit load (or stop attending school altogether), if desired.

WHEN can reducing unit-load happen (for an F-1 married to USC)? I'm not sure the exact date and timing, but from what I've been reading I assume it is once you are in application process for AOS ("in process" status, whatever that is).

[sparkling 0]

So back to the question: What to tell my spouse's school?

Suggestions? How about:

We understand that not enrolling as a full-time student will mean her F-1 visa is invalid, and she will reduce unit load with this knowledge as she's also currently in Adjustment Of Status proceedings by marriage to a US Citizen through USCIS forms I-485 and I-130.