Divorce before AOS interview

[sabarahim 0]

I am on F-1 status and have filed for AOS with my spouse. However things aren't working out and we are divorcing. I still have my F-1 status as my SEVIS is still active and the DSO has not terminated it. Is there a way that I can fall back on my F-1 status should my spouse withdraws the petition and/or lets it expire because of non attendance of interview? I am still maintaining the terms of my F-1 visa. 

[geowrian 22,337]

Did you obtain and use your AOS-based EAD or AP?

[TNJ17 1,329]

They don’t always require an interview. Can you just finish AOS process then file for divorce? You can get a divorce waiver later on stating you entered the marriage in good faith but it didn’t work out when you are removing conditions. A lot easier that way for you anyway. 

[sabarahim 0]

Got AOS and AP but haven’t used them. 

[avrora9002 21]

18 minutes ago, TNJ17 said:

They don’t always require an interview.

Unless I'm mistaken, only if adjusting from K1 you might not get an interview. If adjusting from anything else it is required.

[Ontarkie 14,236]

18 minutes ago, TNJ17 said:

They don’t always require an interview. Can you just finish AOS process then file for divorce? You can get a divorce waiver later on stating you entered the marriage in good faith but it didn’t work out when you are removing conditions. A lot easier that way for you anyway. 

AOS'ing from F1, Work, or Tourist visa will always get an interview. It's only a K1 that may not have interviews. 

[Ontarkie 14,236]

~~Moved to Effects of Major Family Changes, from AOS Progress Reports.~~

[geowrian 22,337]

4 hours ago, sabarahim said:

Got AOS and AP but haven’t used them. 

If AOS application is denied, any benefits attached to it are revoked as well, such as an EAD or AP.

If you had used said benefit(s), my understanding is that you have claiming that status. An individual can only have 1 status at a time in the US, and therefore you would have abandoned F-1 status. At the very least, I know this is the case if one enters via AP (since they are paroled into the US).

 

I'm assuming you meant EAD and AP. Technically you should still fine with F-1 status.

The challenging part is that F-1 status requires non-immigrant intent, and filing for AOS suggests immigrant intent. So you may be fine within the US, but you may also have difficulty re-entering the US if CPB determines immigrant intent (due to the past AOS filing), or renewing the F-1 if it expires.

 

I'm open to thoughts from others as well...honestly there aren't a lot of cases where somebody does not use either benefit and AOS does not go through. The cases I have seen this on were usually a dual intent visa, like an H-1B....the suggestion being to enter on the visa instead of AP for the reason noted above.