F2A- concurrent filing- maintaining non-immigrant visa status after EAD

[raz0407 1]

I filed concurrently under F2A category for my wife who is currently on F1 student visa. Our priority date for both I130 and 485 is 9/27/2013. Our I130 and 485 is under review and won’t get decision till our date is current which is indefinite for now. We are expecting EAD in next 2-3 weeks. My questions are regarding how the beneficiary should maintain the visa status post EAD.

Questions,

- is it safe to take up job on EAD and loose F1 status? I am asking in conjunction to what if our I130 gets rejected in future. We want to make sure she doesn’t go out of the status. I know possibility is very little but still wants to make sure we cover our bases.

- can you maintain F1 status while taking up new job on EAD? My understanding is, you lose F1 status as soon as you take up job using EAD.

We are asking this because it will help my wife decide if she needs to enroll as full time student or can be part time student. Just thinking of reducing class load as she is planning on taking up a full time job.

Your valuable inputs are highly appreciated. Thanks guys!

[john.smith 5]

I filed concurrently under F2A category for my wife who is currently on F1 student visa. Our priority date for both I130 and 485 is 9/27/2013. Our I130 and 485 is under review and won’t get decision till our date is current which is indefinite for now. We are expecting EAD in next 2-3 weeks. My questions are regarding how the beneficiary should maintain the visa status post EAD.

Questions,

- is it safe to take up job on EAD and loose F1 status? I am asking in conjunction to what if our I130 gets rejected in future. We want to make sure she doesn’t go out of the status. I know possibility is very little but still wants to make sure we cover our bases.

- can you maintain F1 status while taking up new job on EAD? My understanding is, you lose F1 status as soon as you take up job using EAD.

We are asking this because it will help my wife decide if she needs to enroll as full time student or can be part time student. Just thinking of reducing class load as she is planning on taking up a full time job.

Your valuable inputs are highly appreciated. Thanks guys!

Well, doing AOS means that you changed your status whichever it was before! so, she already changed her status on the date immigration got your application - she is not on F1 since that day!!!

She cannot fail out of status, as her status is pending, waiting to be adjusted. However, she can be out status if it happens that she does not get approved for her gc.

She does not need to enroll at school anymore as she is not on F1 anymore. She is an AOS APPLICANT and as such her status is pending. She can work as soon as she gets her EAD with no effect on her current status.

Edited November 6, 2013 by john.smith

[raz0407 1]

Well, doing AOS means that you changed your status whichever it was before! so, she already changed her status on the date immigration got your application - she is not on F1 since that day!!!

She cannot fail out of status, as her status is pending, waiting to be adjusted. However, she can be out status if it happens that she does not get approved for her gc.

She does not need to enroll at school anymore as she is not on F1 anymore. She is an AOS APPLICANT and as such her status is pending. She can work as soon as she gets her EAD with no effect on her current status.

Thanks John for your response. My understanding was, F1 will be intact until you start using EAD. Seems like there is not Contingency plan in this stage if her GC doesnt get rejected. any thoughts?

[raz0407 1]

John.smith,

I met up with another lawyer for second opinion. because the sponsor is green card holder (not US Citizen) and our dates are not current, he advised us that u made a mistake if u didnt maintain the F1 status. He says, its important that, beneficiary is in F1 status at the time USCIS is going to approve my 485. I am confused now because my previous lawyer said, its not required. I dont know whom to believe as second lawyer seemed very confident as I asked him thrice.

The issue is, I have an interview schedule in next 10 days and I want get to the bottom of this issue before i go for the interview. Not sure what to do.. can you help? where did you get below info? is it your research or lawyer.. just trying to find sources where I can verify this info. Thanks and appreciate your help.

Well, doing AOS means that you changed your status whichever it was before! so, she already changed her status on the date immigration got your application - she is not on F1 since that day!!!

She cannot fail out of status, as her status is pending, waiting to be adjusted. However, she can be out status if it happens that she does not get approved for her gc.

She does not need to enroll at school anymore as she is not on F1 anymore. She is an AOS APPLICANT and as such her status is pending. She can work as soon as she gets her EAD with no effect on her current status.

[john.smith 5]

For example, she leaves the US, goes on a trip to her home country. she HAS to use her advance parole, not her F1 visa stamp to enter the states again! what does tell you? She is not any longer in her F1 status, since she applied for green card. If she wants to use her F1 visa stamp to enter the states they will deny her entry - again because she applied for green card. She does not need to maintain her f1 status any longer. I know what your second lawyer thinks: if she gets denied for any reason, in that case it would be good for her to have her f1 status - that she has maintained her F1 status, since she would not fail out of status. that is the whole point.

[milimelo 4,481]

As LPR is sponsoring, there is no way that any overstay or out of status will be forgiven - the beneficiary has to remain in valid status until green card in hand.

Furthermore, you can't even do AOS when the PD is not current - that will get rejected and you have wasted the money for medical and fees. When the PD is current, you can then submit AOS IF and only IF the beneficiary is still in valid status.