Maintaining F1 status while AOS pending

[SamSam85 47]

9 minutes ago, Jojo92122 said:

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.

Two points:

1- when you say "An abandoned AOS is treated as frivolous", you mean ALWAYS regardless of the underlying reason?

2- Even if unlawful presence was retroactive, that is very different from saying "AOS is frivolous". 

[Jojo92122 1,924]

2 minutes ago, SamSam85 said:

Two points:

1- when you say "An abandoned AOS is treated as frivolous", you mean ALWAYS regardless of the underlying reason?

2- Even if unlawful presence was retroactive, that is very different from saying "AOS is frivolous". 

Did you Google as I suggested?

 

 

[SamSam85 47]

1 minute ago, Jojo92122 said:

Did you Google as I suggested?

 

 

this is the link that came up w/ me, not sure if its the same you meant?

https://www.shanelaw.com/uncategorized/april-6-2009-adjustment-of-status-application-abandoned-by-departure/

"Depending on whether you were out of status and had accrued 180 days of unlawful presence in the United States before you departed, you may be subject to the three year bar"

If the link is right, and I'm quoting the right statement, it contradicts this : https://fam.state.gov/FAM/09FAM/09FAM030211.html#M302_11_3_B_1  (9)(b)(5), right?

[geowrian 22,338]

23 minutes ago, Jojo92122 said:

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.

Where is this stated than an abandoned AOS application is deemed frivolous? This is news to me.

 

I did the google search and nothing in there conflicts with what has been stated above. The article refers to somebody who has accrued 180+ days of unlawful presence. However, the FAM memo states that somebody with a properly filed AOS application does not accrue unlawful presence (although existing unlawful presence is tolled pending the result).

 

Also see this: https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-17138/0-0-0-18383.html#0-0-0-1865

They given an example illustrating this point of changing to CP...due to a denied AOS application, not abandoned, but these are treated the same way since both were properly filed, which is the rule they go by:

"

Example:

An alien, who has been unlawfully in the United States for 90 days, and who had worked without authorization during the 90 days, applies for adjustment of status based on an approved Form I-130, Petition for Alien Relative.

The application for adjustment of status is properly filed, that is, the application is fully executed, signed, and the applicant pays the proper fee. See 8 CFR 103.2(a)(7) . Also, with the application package, the alien provides a copy of Form I-797 , Notice of Approval for the Alien Relative Petition, and a copy of the newest Visa Bulletin, demonstrating that a visa number is immediately available in his or her preference category. See 8 CFR 245.2 .

Therefore, USCIS accepts the application and stamps it as received and properly filed as of January 1, 2007. What is not readily apparent from the initial review of the application is that the alien had previously worked without authorization, and therefore, he or she is not eligible to apply for adjustment of status pursuant to section 245(c) of the Act.

However, because the application was accepted by USCIS as (technically) properly filed, the applicant is now in authorized stay and does not accrue any unlawful presence during the pendency of the properly filed application for adjustment of status.

At the time of the interview, on April 1, 2007, the applicant’s adjustment of status application is denied based on section 245(c) of the Act, for having been employed without authorization.

On April 2, 2007, the alien’s accrual of unlawful presence resumes because he or she no longer has a pending application for adjustment of status. The alien departs the United States on May 1, 2007, after having secured an immigrant visa interview at the US Embassy/consular section in his or her home country.

In assessing the alien’s inadmissibility under section 212(a)(9) of the Act, the consular officer will count the alien’s 90 days of unlawful presence that accrued prior to the filing of the adjustment of status application, and the 30 days of unlawful presence that accrued after the adjustment of status application was denied.

However, the consular officer will not count the time period during which the adjustment of status application was pending because the individual was in a period of stay authorized and did not accrue unlawful presence during the pendency of the adjustment application.

"

Edited June 6, 2018 by geowrian

[SamSam85 47]

On 6/6/2018 at 5:14 PM, Jojo92122 said:

Did you Google as I suggested?

 

 

Do you agree with the arguments we had above?

[azblk 338]

On 6/6/2018 at 6:00 PM, Jojo92122 said:

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.

"6. TO BE CONSIDERED NONFRIVOLOUS, THE APPLICATION MUST HAVE AN ARGUABLE BASIS IN LAW
AND FACT AND MUST NOT HAVE BEEN FILED FOR AN IMPROPER PURPOSE (E.G., AS A GROUNDLESS
EXCUSE FOR THE APPLICANT TO REMAIN IN THE U.S. TO ENGAGE IN ACTIVITIES INCOMPATIBLE
WITH HIS/HER STATUS). TO FIND AN APPLICATION NONFRIVOLOUS, IT IS NOT NECESSARY TO
DETERMINE THAT THE INS WOULD HAVE ULTIMATELY RULED IN FAVOR OF THE ALIEN."

[SamSam85 47]

On 2/9/2018 at 1:01 PM, azblk said:

That is incorrect. You only lose you status if you drop out of school, reduce your course load to below the minimum or utilize a benefit of AOS like working on your EAD or leaving with advance parole.

Back to the OPs question, you do not need to maintain F-1 status as long as you are sure nothing will go wrong with your AOS. Some people maintain f-1 status through AOS as a backup in case something like a divorce happens before process is complete.

Although during AOS, you are in a period of authorized stay, I am not sure if ICE understands that and respects it, or you are still a priority for finishing school and staying without status.

[azblk 338]

1 hour ago, SamSam85 said:

Although during AOS, you are in a period of authorized stay, I am not sure if ICE understands that and respects it, or you are still a priority for finishing school and staying without status.

ICE will leave you alone in almost all cases.

[SamSam85 47]

3 hours ago, azblk said:

"6. TO BE CONSIDERED NONFRIVOLOUS, THE APPLICATION MUST HAVE AN ARGUABLE BASIS IN LAW
AND FACT AND MUST NOT HAVE BEEN FILED FOR AN IMPROPER PURPOSE (E.G., AS A GROUNDLESS
EXCUSE FOR THE APPLICANT TO REMAIN IN THE U.S. TO ENGAGE IN ACTIVITIES INCOMPATIBLE
WITH HIS/HER STATUS). TO FIND AN APPLICATION NONFRIVOLOUS, IT IS NOT NECESSARY TO
DETERMINE THAT THE INS WOULD HAVE ULTIMATELY RULED IN FAVOR OF THE ALIEN."

So just changing from AOS to CP doesnt necessarily mean it was filed for a different purpose (ie, frivolous) 

[azblk 338]

56 minutes ago, SamSam85 said:

So just changing from AOS to CP doesnt necessarily mean it was filed for a different purpose (ie, frivolous) 

No unless you file for AOS with no intention of becoming a permanent resident but just to use the pending AOS to buy yourself some more time in America. A frivolous determination is a very high bar and if i remember correctly can only be made by a judge not the uscis.

[ANOR 5]

On 2/7/2018 at 10:02 PM, leahy said:

Good evening everyone!

 

I've been lurking this forum but this is my first post. Thanks to everyone for all the insightful advice. I hope you guys can help me as well. 

 

I'm currently on F1 status and recently married to a USC. We filed concurrently I-130 and I-485 and I just finished my biometrics on 2/5. However, because of financial hardship, I need to take temporary leave of absence from school. I'm aware that by doing so, I won't be able to maintain my F1 status. 

 

What I've gathered in my research is that while the AOS application pending, I don't need to maintain the F1 status in order to stay in the US. Is this still true? I'm a bit nervous about this because there seems to be so much talk in the Congress about immigration and I'm not sure if there's any recent change. 

 

Thanks everyone for your help!

Hi leahy, did you eventually find out a legit answer for this? I am in the same situation. I asked different places (forums) and Called USCIS to ask 2 times, both times the reps told me it is ok to remain in the US without another valid visa while we have pending I485. But I am also as worried as you are. please share if you have further info. Thanks again.

[MrsBPM 34]

I had to take a break in November therefore losing my F1 status. We originally applied in December, then resubmitted in March. Your status is now simply adjusting status. You're okay as long as you're waiting. Don't be worried.