Maintaining F1 status while AOS pending

[azblk 338]

2 hours ago, geowrian said:

An overstay (or more precisely, unlawful presence) is not ignored except in limited cases, such as being an immediate relative (spouse, parent, under-21 child) of a USC.

 

Another important aspect is that properly filing for AOS grants a period of authorized stay, and therefore you aren't accruing unlawful presence while waiting for them to make a decision on your case. So even those who are not exempt from the overstay bar would be fine if they file for AOS (and are qualified for it) before having accrued any unlawful presence.

This is inaccurate. Unlawful presence has no bearing on AOS.  All it does is trigger the 3/10 year bans IF and only IF you leave the country or are removed.

[geowrian 22,338]

10 minutes ago, azblk said:

This is inaccurate. Unlawful presence has no bearing on AOS.  All it does is trigger the 3/10 year bans IF and only IF you leave the country or are removed.

No, unlawful presence is a bar to AOS. That said, certain categories of aliens are exempt from the bar for AOS purposes (i.e. IRs of a USC).

 

Specifically, this is addressed under INA 245(c)(2), or 245(c)(4) for VWP travelers. A list of bars to AOS is available via the USCIS policy manual: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter2.html

Edit: See section F (Bars to Adjustment of Status)

Edited May 14, 2018 by geowrian

[azblk 338]

4 hours ago, Britinstl said:

So F1 students who fall out of status from that date start accruing unlawful presence.... BUT, if they're AOS via marriage to a US citizen, the same benefits apply, such as overstay forgiven due to being a spouse of a US citizen, can AOS, etc?

yes but it is retroactive too to those F-1 students that are already out of status. What this is going is block a very little used route to legal status that was available to people with d/s i-94's. This involved those who otherwise couldn't AOS returning to thier home countries and pursuing consular processing. Since they had no unlawful presence and no 3/10 year bars,   they could return right after visa approval.

[azblk 338]

8 minutes ago, geowrian said:

No, unlawful presence is a bar to AOS. That said, certain categories of aliens are exempt from the bar for AOS purposes (i.e. IRs of a USC).

 

Specifically, this is addressed under INA 245(c)(2), or 245(c)(4) for VWP travelers. A list of bars to AOS is available via the USCIS policy manual: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter2.html

look at section H of the manual page you just posted. It lists the bars to AOS. Unlawful presence is NOT mentioned.

 

Also people with employment based petitions can successfully AOS even if the have been out of status and therefore accrued unlawful presence for less that 6 months.

Edited May 14, 2018 by azblk

[italiansf 40]

I applied for AOS last October and I'm a F1 student and I'm maintaining full status.

This morning I went to the Uscis office in San Francisco, to ask for expedite my advance parole, and then I asked about my student situation, and she told me that my Visa and relative status is void because of the AOS, so I can quit school if I want.

 

[azblk 338]

48 minutes ago, italiansf said:

I applied for AOS last October and I'm a F1 student and I'm maintaining full status.

This morning I went to the Uscis office in San Francisco, to ask for expedite my advance parole, and then I asked about my student situation, and she told me that my Visa and relative status is void because of the AOS, so I can quit school if I want.

 

That is wrong. You can quit school if you want but filing AOS doesnt void your F-1 status.

[Jojo92122 1,924]

51 minutes ago, italiansf said:

I applied for AOS last October and I'm a F1 student and I'm maintaining full status.

This morning I went to the Uscis office in San Francisco, to ask for expedite my advance parole, and then I asked about my student situation, and she told me that my Visa and relative status is void because of the AOS, so I can quit school if I want.

 

The USCIS office gave you the wrong information or you misunderstood it.

1.  Filing for AOS does not void your F-1 status.  

2.  Filling for AOS allows you to be in the US legally, so you do not have to maintain your F-1 status to legally stay in the US.

3.  Once you accept a benefit of the AOS, i.e. quitting school and rely on AOS for legal status in the US, or use the EAD, or use AP, then you are no longer in F-1 status.

[italiansf 40]

Thanks!

I have 3 months to decide if I want to quit school (or get my I20 terminated and enrolled as a resident using my I130 receipt as a proof).

I'll think about it!

 

[SamSam85 47]

On 5/18/2018 at 2:53 PM, Jojo92122 said:

The USCIS office gave you the wrong information or you misunderstood it.

1.  Filing for AOS does not void your F-1 status.  

2.  Filling for AOS allows you to be in the US legally, so you do not have to maintain your F-1 status to legally stay in the US.

3.  Once you accept a benefit of the AOS, i.e. quitting school and rely on AOS for legal status in the US, or use the EAD, or use AP, then you are no longer in F-1 status.

What if someone wants to withdraw AOS and start pursing CP. Would the time spent after F1 done until withdrawing AOS be considered towards unlawful accrual?

[Jojo92122 1,924]

2 hours ago, SamSam85 said:

What if someone wants to withdraw AOS and start pursing CP. Would the time spent after F1 done until withdrawing AOS be considered towards unlawful accrual?

Yes.  Abandoning AOS means unlawful presence began accumulating when the I-94 expired or when the person went out of status.

[SamSam85 47]

12 minutes ago, Jojo92122 said:

Yes.  Abandoning AOS means unlawful presence began accumulating when the I-94 expired or when the person went out of status.

Have a source for this? It was a D/S F1 visa.

[geowrian 22,338]

14 minutes ago, Jojo92122 said:

Yes.  Abandoning AOS means unlawful presence began accumulating when the I-94 expired or when the person went out of status.

I don't believe this is correct on 2 counts:

1) OP was admitted D/S so I-94 is not an issue (see (b)(1)(E)(ii) below)

2) https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF see (b)(3)(A)

 

[Jojo92122 1,924]

21 minutes ago, SamSam85 said:

Have a source for this? It was a D/S F1 visa.

With a D/S, then the I-94 doesn't expire.  

[SamSam85 47]

7 minutes ago, Jojo92122 said:

With a D/S, then the I-94 doesn't expire.  

I think even if I-94 expired, w/ a properly filed I-485, abandonment does not mean unlawful presence from the date I-94 was expired.

Check: https://fam.state.gov/FAM/09FAM/09FAM030211.html#M302_11_3_B_1  (9)(b)(5)

[Jojo92122 1,924]

21 minutes ago, SamSam85 said:

I think even if I-94 expired, w/ a properly filed I-485, abandonment does not mean unlawful presence from the date I-94 was expired.

Check: https://fam.state.gov/FAM/09FAM/09FAM030211.html#M302_11_3_B_1  (9)(b)(5)

An abandoned AOS is treated as frivolous.  

 

People would file frivolous AOS, overstay, and then abandon them without consequences if unlawful presence was not retroactive.  This is why abandoning AOS has consequences.  

 

Suggest you Google "abandoning AOS unlawful presence" and read the first link.

Edited June 6, 2018 by Jojo92122