Adjustment of Status (AOS) for a Beneficiary of F1 Family Petition, when the Beneficiary is Out of Status on a Student Visa.

[Sunny5 0]

My heartfelt greetings to all family members of this website VisaJourney.com, who are a great resource, motivation & inspiration to fellow travelers, on their journey towards the destination of US Permanent Residence & Citizenship.

I am posting this to invite your thoughts, opinions, suggestion regarding my case & how should I proceed from this point on wards.

My petition is eligible for further processing, but I feel nervous that the Adjustment of Status (AOS) might be difficult in my situation. But I have faith that it is possible. So I am now trying to find more helpful information, before proceeding with further processing.

Below is a brief timeline of all important happenings:

October 2005

My family moved from India to USA & Received their Green Card.
My Uncle (dad’s bother) had applied/filed a Petition for our family in 1992 which became current in 2005.

At the time of our family interview in 2005, my age was 22 ½ years, so I was not issued the Immigrant Visa & Green Card along with my family members.

March 30, 2007

My Mother filed the 1-130 Petition for me.

December 22, 2007

I arrived in California on a Student Visa to pursue Master’s in Engineering from University.

April 2008

Got an Offer of Employment to work On-Campus. Applied for Social Security Number. Got Driving License.

August 18, 2009

Received I-797 that my Immigrant Petition was Approved & the Priority Date of March 30, 2007 was confirmed.

September 2009

Successfully Completed Master’s in Engineering Management (M.S.) from University.

June 23, 2009 till June 14, 2010

Received Employment Authorization Card (EAD) for Optional Practical Training (OPT).

Due to an unforeseen economic downturn in USA, most companies were not sponsoring an H1B Visa. Couldn’t transfer from OPT to H1B.

August 23, 2010

Enrolled in College for undergraduate classes to keep valid Student Visa Status.

April 20, 2011

Transferred to University & enrolled for a second Master’s Degree (MBA).

October 2011

My Mom received her US Citizenship Certificate & then my Petition was changed/upgraded from F2B to F1 Preference Category

December 10, 2011

Realized that our family couldn’t afford to keep paying my Tuition fees in order to keep valid immigrant status. Thought that with Visitor Visa I can stay in USA for 6 months per year & return to India. Then after 6 months, visit USA again & so on, till receiving Green Card.
My family members are dependent on me in many ways, so I could not just abandon everything & leave USA for the next (2 ½ - 3) years.

After much thought, submitted Application to Change Non-Immigrant Status from Student (F-1) to Visitor for Pleasure (B-2). The application was submitted online & fees were paid. But no supporting documentation was sent.

February 6, 2012

Received “Notice of Decision” that Application was Denied on the basis of “failing to provide required initial evidence & supporting documentation.”

I was still enrolled in University & continued there, since the tuition fee had already been paid for the ongoing semester.

June 14, 2012

SEVIS was Terminated by University as I couldn’t afford to pay the Tuition Fee anymore in order to keep my Student Visa status.

June 14, 2012 till June 2014

Staying with family. Waiting for Priority Date to become current & then proceed with the next steps to getting Permanent Residence.

June 10, 2014

Was checking the Visa Bulletin regularly & finally my Priority Date became current & now my Petition is eligible for further processing.

June-10-2014 till Present

Doing research online, including the various Immigration Forums (VisaJourney.com) & websites (Nolo.com) & considering hiring the services of top attorney nearby, who feels 100% confident (or, close to 100%) about winning this case, & helping me secure the Permanent Residence Green Card in the shortest time.

June 29, 2014

Decided to post my details on this esteemed forum & welcome advice/feedback from the VisaJourney.com family.

In addition to the above, I will like to share little more information, which I feel the person reading this should know, in order to understand my situation & the importance of this petition for our family:

1) We are a very close-knit family & inter-dependent on each other. Both my parents require my assistance with many day to day tasks.

In addition to parents, my Grandparents are also dependent on for many of their smallest needs & general daily tasks.

2) The challenge in my petition is that I am “Out of Status” on a Student Visa. And the only single reason I went out of status is because of “financial difficulty”. Right now, we are under a personal debt of more than $80,000 which we incurred to pay for my tuition fee & related expenses, for the 4 ½ years which I was a student.

I am a well qualified Computer Engineer with Master’s degree; and the salary of Silicon Valley professionals with comparable education, experience is $75,000+ per year. Our family was hoping that the Petition would become eligible for processing soon & then I can pay off the debt within (2 - 3) years.

So in addition to the emotional, personal reasons, I also have a financial obligation towards my family who entrusted me with their lifetime savings. And in order to live up to their trust, I must get the Green Card & Work Authorization at the earliest.

3) If a Student (who arrived in USA legally & has a D/S I-94) falls out of status, then that is now considered "Un-lawful Presence" & hence, the adjustment of status (AOS) might be a straight-forward process (though not sure).
In my case, I am worried that when I applied for the "Adjustment of Status" & it was denied, that might have triggered the "Unlawful Presence". However, I am not certain about this, because I was still enrolled as a student & my SEVIS was terminated 3 months later in June-2012 (while the Visa application had been denied in Feb-2012).

I have noticed that the members of this website are very brilliant, pragmatic, positive, confident about winning difficult cases & compassionate towards the individual situation of everyone who post their challenges here.

I look forward to your replies, while hoping & praying for the best. God Bless.

- Sunny

*****

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[belinda63 3,047]

As far as I understand you can't AOS from inside the US since you are out of status and not an immediate family member (in immigration's eyes). As to any ban you may have, since you were a student and your I-94 says D/S I don't know if you have accrued overstay time or if you denial of a tourist visa would play a part in that.

[Hypnos 6,578]

You cannot successfully file for AoS because you have failed to maintain a lawful nonimmigrant status. Since you are not an immediate relative of a US citizen then your lapse of status will not be forgiven. Any AoS application you file through your mother's petition will be denied, and removal proceedings will likely be initiated against you shortly thereafter.

You have technically accrued no overstay because your F-1 I-94 was "D/S". You are, however, still out of status, and deportable.

You should return to your country of origin and attempt to find gainful employment there, if that's your wish. You have no path to permanent residency in the US.

Edited June 29, 2014 by Hypnos

[NigeriaorBust 4,087]

By staying past your authorized status as an adult you have cut yourself off from being able to adjust status in the US. You can not work and will never be able to adjust status in the US. You need to leave and wait to interview . hoping that you haven't incurred a 10 year ban. US immigration law is based on the US sense of family where children that are over 21 are not part of the immediate family and not treated the same. Because you can't adjust in the US your single hope is they don't figure a ban ( due to the DS on your I94 ) otherwisse you are 10 years away from returning to the US

[milimelo 4,569]

Is there a reason you're not hightailing it out of the US and to India to get consular processing?

July VB for India is 01APR07 - surprised you didn't get started on NVC paperwork intake already.

[NancyNguyen 1,658]

She's been out of status (f1 student) for more than 2 years, and barred time, yes there is. From beginning, she has had intention to adjust status when she was on student visa (Waiting for her parent's petition) her intention is clearly visa fraud.