F-1 student married LPR. Pending AOS. Do I have to maintain Full-time status?

[f f 725]

you can have both the f1 student allowing you to stay and the pending aos allowing you to stay at the same time so you would just lose the f1 but since the aos gives you authorized stay also you are fine.

they would know you have authorized stay since your alien number connects the two applications. though they do tend to make mistakes occasionally but it is easy to show you still have authorized stay with the noa1 from the aos.

[geowrian 22,337]

2 hours ago, SamSam85 said:

Hi man, quick question if you don't mind. If I graduate/stop attending school, how would immigration people differentiate between someone who has a pending AOS and is authorized to stay and someone who is out of status and must leave the US?

The I-485's NOA1 is proof of authorized stay.

[youyouyaya 0]

On 10/15/2017 at 11:27 PM, geowrian said:

Out of status: yes. But you will have authorized stay and will not accrue unlawful presence while your I-485 is pending. The potential issue is if your AOS is denied then you won't qualify to re-file (since you will then have unlawful presence at the time of filing).

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-24520/0-0-0-24528.html

(6) Any alien who files an application for adjustment of status on or after November 6, 1986, who has failed (other than through no fault of his or her own or for technical reasons) to maintain continuously a lawful status since entry into the United States, except an applicant who is an immediate relative as defined in section 201(b) of the Act or a special immigrant as defined in section 101(a)(27)(h), (I), or (J)of the Act; 

[SamSam85 47]

1 minute ago, youyouyaya said:

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-24520/0-0-0-24528.html

(6) Any alien who files an application for adjustment of status on or after November 6, 1986, who has failed (other than through no fault of his or her own or for technical reasons) to maintain continuously a lawful status since entry into the United States, except an applicant who is an immediate relative as defined in section 201(b) of the Act or a special immigrant as defined in section 101(a)(27)(h), (I), or (J)of the Act; 

What does this mean? I couldn't find in the link above? what do you suggest here?

[SamSam85 47]

1 minute ago, SamSam85 said:

What does this mean? I couldn't find in the link above? what do you suggest here?

I think you are confusing two things:

1- only immediate relatives can apply for AOS if they fall out of status

2- others are only required to maintain status until the time of filing. Once application is filed, they are in a period of authorized stay. I think you confused these two together

[geowrian 22,337]

13 minutes ago, youyouyaya said:

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-24520/0-0-0-24528.html

(6) Any alien who files an application for adjustment of status on or after November 6, 1986, who has failed (other than through no fault of his or her own or for technical reasons) to maintain continuously a lawful status since entry into the United States, except an applicant who is an immediate relative as defined in section 201(b) of the Act or a special immigrant as defined in section 101(a)(27)(h), (I), or (J)of the Act; 

You're missing the forest through the trees. The very top of the same page:

" (a) General. Any alien who is physically present in the United States, except for an alien who is ineligible to apply for adjustment of status under paragraph (b) or (c) of this section, may apply for adjustment of status to that of a lawful permanent resident of the United States if the applicant is eligible to receive an immigrant visa and an immigrant visa is immediately available at the time of filing of the application. "

 

You need to have legal status when you file a proper I-485 application. Once you have filed, you have authorized stay via the pending AOS application.

The part you quoted covers who is allowed to file for AOS. If you are out of status when you file, then you don't qualify (unless your overstay is ignored, such as for IRs of USCs).

Edited October 27, 2017 by geowrian

[youyouyaya 0]

14 minutes ago, geowrian said:

You're missing the forest through the trees. The very top of the same page:

" (a) General. Any alien who is physically present in the United States, except for an alien who is ineligible to apply for adjustment of status under paragraph (b) or (c) of this section, may apply for adjustment of status to that of a lawful permanent resident of the United States if the applicant is eligible to receive an immigrant visa and an immigrant visa is immediately available at the time of filing of the application. "

 

You need to have legal status when you file a proper I-485 application. Once you have filed, you have authorized stay via the pending AOS application.

The part you quoted covers who is allowed to file for AOS. If you are out of status when you file, then you don't qualify (unless your overstay is ignored, such as for IRs of USCs).

Apparently, at the time of filing of the application, a visa is not immediately available for F2A. One has to wait for the final action date.

[geowrian 22,337]

12 minutes ago, youyouyaya said:

Apparently, at the time of filing of the application, a visa is not immediately available for F2A. One has to wait for the final action date.

True, but USCIS "fairly recently" changed to permit filing for AOS for family-based immigration based on the "Dates for Filing" (and this can change from month to month!). The previously mentioned USCIS policy manual clarifies that they go based on a timely and properly filed AOS application.

 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter3.html

"A foreign national is barred from adjustment of status if the foreign national is in an unlawful immigration status on the date of filing the adjustment application. ^[1]"

Also see INA 245(c)(2) referenced in the footnote (https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-7418.html), which also refers specifically to the date of filing for maintaining lawful status.

Edited October 27, 2017 by geowrian

[youyouyaya 0]

15 minutes ago, geowrian said:

True, but USCIS "fairly recently" changed to permit filing for AOS for family-based immigration based on the "Dates for Filing". The previously mentioned USCIS policy manual clarifies that they go based on a timely and properly filed AOS application.

From my understanding, correct me if I am wrong: 

Any alien who is physically present in the United States, except for an alien who is ineligible to apply for adjustment of status under paragraph (b) or (c) of this section, may apply for adjustment of status to that of a lawful permanent resident of the United States if the applicant is eligible to receive an immigrant visa and an immigrant visa is immediately available at the time of filing of the application.

 

So these people are not eligible to apply for adjustment of status which include:

(6) Any alien who files an application for adjustment of status on or after November 6, 1986, who has failed (other than through no fault of his or her own or for technical reasons) to maintain continuously a lawful status since entry into the United States,

 

It does not state "fail to maintain lawful status" prior to  adjustment of status.

but if we read some other parts , the following type is also unable to adjust.

(4) Any alien who, on or after January 1, 1977, was employed in the United States without authorization prior to filing an application for adjustment of status.

 

So USCIS means that a relative of LPR has to maintain a legal status all the time.

Edited October 27, 2017 by youyouyaya

[geowrian 22,337]

45 minutes ago, youyouyaya said:

From my understanding, correct me if I am wrong: 

Any alien who is physically present in the United States, except for an alien who is ineligible to apply for adjustment of status under paragraph (b) or (c) of this section, may apply for adjustment of status to that of a lawful permanent resident of the United States if the applicant is eligible to receive an immigrant visa and an immigrant visa is immediately available at the time of filing of the application.

 

So these people are not eligible to apply for adjustment of status which include:

(6) Any alien who files an application for adjustment of status on or after November 6, 1986, who has failed (other than through no fault of his or her own or for technical reasons) to maintain continuously a lawful status since entry into the United States,

 

It does not state "fail to maintain lawful status" prior to  adjustment of status.

but if we read some other parts , the following type is also unable to adjust.

(4) Any alien who, on or after January 1, 1977, was employed in the United States without authorization prior to filing an application for adjustment of status.

 

So USCIS means that a relative of LPR has to maintain a legal status all the time.

There's a few issues going on here, so I'll see what I can do to separate and clarify them.

 

1) This applies to who is eligible to file for AOS. Maintaining legal status is necessary to file for AOS (except for IRs of a USC and special immigrants).

2) I think you're confusing filing versus adjudication. Nothing stated above refers to the time of adjudication of the I-485. It's all in terms of filing.

3) LPRs are permitted to file for AOS in accordance with the AOS filing charts (https://www.uscis.gov/visabulletininfo).

4) Unauthorized work is a separate issue than the timing of filing for AOS. Unauthorized work is (obviously) prohibited at any time.

 

See https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter4.html#S-G for the relevant adjudication consideration.

"G. Properly Filed Adjustment Application – INA 245(c)(2) and INA 245(c)(8)

For purposes of the bars to adjustment, a nonimmigrant only needs to maintain his or her nonimmigrant status until the time he or she properly files an adjustment application with USCIS so long as the nonimmigrant does not engage in any unauthorized employment after filing the adjustment application. ^[43] An applicant does not violate the terms of his or her nonimmigrant status merely by filing an application to adjust status as long as the application was properly filed when the applicant was in lawful nonimmigrant status. ^[44] "

 

Edit: Note that INA 245(c)(2) is the one I referenced above applying to this situation.

Edited October 27, 2017 by geowrian

[youyouyaya 0]

1 hour ago, geowrian said:

There's a few issues going on here, so I'll see what I can do to separate and clarify them.

 

1) This applies to who is eligible to file for AOS. Maintaining legal status is necessary to file for AOS (except for IRs of a USC and special immigrants).

2) I think you're confusing filing versus adjudication. Nothing stated above refers to the time of adjudication of the I-485. It's all in terms of filing.

3) LPRs are permitted to file for AOS in accordance with the AOS filing charts (https://www.uscis.gov/visabulletininfo).

4) Unauthorized work is a separate issue than the timing of filing for AOS. Unauthorized work is (obviously) prohibited at any time.

 

See https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter4.html#S-G for the relevant adjudication consideration.

"G. Properly Filed Adjustment Application – INA 245(c)(2) and INA 245(c)(8)

For purposes of the bars to adjustment, a nonimmigrant only needs to maintain his or her nonimmigrant status until the time he or she properly files an adjustment application with USCIS so long as the nonimmigrant does not engage in any unauthorized employment after filing the adjustment application. ^[43] An applicant does not violate the terms of his or her nonimmigrant status merely by filing an application to adjust status as long as the application was properly filed when the applicant was in lawful nonimmigrant status. ^[44] "

 

Edit: Note that INA 245(c)(2) is the one I referenced above applying to this situation.

Okay, thanks for clarification. It seems that you are right. I've read so many posts that people do have different views on it.  Do you know anyone who actually did it and got approved? Are you in the same boat? I just want to be 100% sure that it is correct. Thanks so much.

[azblk 338]

8 minutes ago, youyouyaya said:

Okay, thanks for clarification. It seems that you are right. I've read so many posts that people do have different views on it.  Do you know anyone who actually did it and got approved? Are you in the same boat? I just want to be 100% sure that it is correct. Thanks so much.

One only has to be "in status" at time of properly filing ( my interpretation is until you receive i-797 NOA rather than post mark) that way there is no doubt in case your application  is returned for things like incorrect fees or expired forms.

[SamSam85 47]

1 hour ago, geowrian said:

There's a few issues going on here, so I'll see what I can do to separate and clarify them.

 

1) This applies to who is eligible to file for AOS. Maintaining legal status is necessary to file for AOS (except for IRs of a USC and special immigrants).

2) I think you're confusing filing versus adjudication. Nothing stated above refers to the time of adjudication of the I-485. It's all in terms of filing.

3) LPRs are permitted to file for AOS in accordance with the AOS filing charts (https://www.uscis.gov/visabulletininfo).

4) Unauthorized work is a separate issue than the timing of filing for AOS. Unauthorized work is (obviously) prohibited at any time.

 

See https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter4.html#S-G for the relevant adjudication consideration.

"G. Properly Filed Adjustment Application – INA 245(c)(2) and INA 245(c)(8)

For purposes of the bars to adjustment, a nonimmigrant only needs to maintain his or her nonimmigrant status until the time he or she properly files an adjustment application with USCIS so long as the nonimmigrant does not engage in any unauthorized employment after filing the adjustment application. ^[43] An applicant does not violate the terms of his or her nonimmigrant status merely by filing an application to adjust status as long as the application was properly filed when the applicant was in lawful nonimmigrant status. ^[44] "

 

Edit: Note that INA 245(c)(2) is the one I referenced above applying to this situation.

Good answer, pretty much clarified everything.

 

Are you practicing law? because I think you have good big picture view on these matters.

[youyouyaya 0]

28 minutes ago, SamSam85 said:

Good answer, pretty much clarified everything.

 

Are you practicing law? because I think you have good big picture view on these matters.

check this link as well: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter3.html

A foreign national is barred from adjustment of status if the foreign national is in an unlawful immigration status on the date of filing the adjustment application. ^[1] This bar to adjustment does not apply to: 

 

•Immediate relatives; ^[2] 

 

•Violence Against Women Act (VAWA)-based applicants;

 

•Certain foreign doctors and their accompanying spouse and children; ^[3] 

 

•Certain G-4 international organization employees, NATO-6 employees, and their family members; ^[4] 

 

•Special immigrant juveniles; ^[5] 

 

•Certain members of the U.S. armed forces and their spouses and children; ^[6] or

 

•Employment-based applicants who meet the INA 245(k) exemption.

[SamSam85 47]

1 minute ago, youyouyaya said:

check this link as well: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter3.html

A foreign national is barred from adjustment of status if the foreign national is in an unlawful immigration status on the date of filing the adjustment application. ^[1] This bar to adjustment does not apply to: 

 

•Immediate relatives; ^[2] 

 

•Violence Against Women Act (VAWA)-based applicants;

 

•Certain foreign doctors and their accompanying spouse and children; ^[3] 

 

•Certain G-4 international organization employees, NATO-6 employees, and their family members; ^[4] 

 

•Special immigrant juveniles; ^[5] 

 

•Certain members of the U.S. armed forces and their spouses and children; ^[6] or

 

•Employment-based applicants who meet the INA 245(k) exemption.

that confirms the theory above, right? 

"if the foreign national is in an unlawful immigration status on the date of filing the adjustment application"

 

It's date of filing, not date of adjudication.