Travel without Travel document but signed I-20

[Arete88 4]

Hi people,

 

I am AOS from F1 (student visa). Although this is my first post, I think this is an amazing forum. 

 

I filed the I485 with the I765 and the I131 in the beginning of March. This latter because I need to travel outside the US for 2 weeks in July. At this point, I'm not sure I will get the travel authorization before that happens, but I am also starting a Ph.D. in August so I am able to get a new I-20 with the signature to travel in July. My question is: if I travel with my F1 and signed I-20 , would I have any problem when I come back to the US since I have my AOS and travel authorization in that proceeding pending?

 

I would be very grateful for any advice in this respect. 

Thanks!

Edited May 17, 2018 by Arete88

[geowrian 22,337]

Yes, you probably would be denied entry due to immigrant intent (since you had filed an AOS application).

Additionally, your existing AOS application would be deemed abandoned automatically.

Furthermore, it would be fraud to enter the US on F-1 status with intent to AOS. It's fine if you are already in the US to change your mind and want to stay, but it is not allowed when you enter the US on F-1 status.

[Arete88 4]

10 minutes ago, geowrian said:

Yes, you probably would be denied entry due to immigrant intent (since you had filed an AOS application).

Additionally, your existing AOS application would be deemed abandoned automatically.

Furthermore, it would be fraud to enter the US on F-1 status with intent to AOS. It's fine if you are already in the US to change your mind and want to stay, but it is not allowed when you enter the US on F-1 status.

 

I don't think you understood my question.

 

I've been in the US with an F1 for a year already. I was doing my Master and I just graduated last week. Furthermore, I was accepted to a Ph.D. program that starts in August, so the University has to issue a new I-20, and I do not have to leave the country in between (my Ph.D. extends for another 5 years).

 

Paralelly, two months ago I filed for AOS, since my wife is American and I realized we will have to stay for at least 5 more years in the US.

 

The issue is that I have to travel in July for 2 weeks, for which I filed the I131 along with the I485, but since everything is super slow I doubt I'll get it before I have to travel. So, I am asking if I may travel with my F1 and my I-20.

 

That's my situation. I don't know where you're getting that such a thing may be fraud, since virtually everyone I know that has AOS from H1B travel in the meanwhile with their H1B, even when the AOS is pending.

Edited May 17, 2018 by Arete88

[Boiler 45,486]

F1 is a non immigrant visa, seems you want to use it to immigrate. By leaving without AP you will be abandoning your AOS.

 

Hope that helps.

[Arete88 4]

2 minutes ago, Boiler said:

F1 is a non immigrant visa, seems you want to use it to immigrate. By leaving without AP you will be abandoning your AOS.

 

Hope that helps.

 

 

I am not using the F1 to immigrate. Please reread my posts. 

Edited May 17, 2018 by Arete88

[Boiler 45,486]

1 minute ago, Arete88 said:

 

 

I am not using the F1 to immigrate. Please reread my posts. 

Let us try and make this simple, you leave in July, you seek re entry to the US, will you be looking to stay and get a Green Card or return home?

[Arete88 4]

Just now, Boiler said:

Let us try and make this simple, you leave in July, you seek re entry to the US, will you be looking to stay and get a Green Card or return home?

 

Thanks for your help. The simple answer is: I already filed for AOS, so, in your terms, I'm already looking to stay. How could I re-look to stay in July?

[Boiler 45,486]

So you need to wait  for AP before you travel.

[Arete88 4]

18 minutes ago, Boiler said:

So you need to wait  for AP before you travel.

 

Now that I carefully think about it, it actually makes a lot of sense. Thank you so much for your answer.

Edited May 17, 2018 by Arete88

[KeratNY 76]

2 hours ago, geowrian said:

Yes, you probably would be denied entry due to immigrant intent (since you had filed an AOS application).

Additionally, your existing AOS application would be deemed abandoned automatically.

Furthermore, it would be fraud to enter the US on F-1 status with intent to AOS. It's fine if you are already in the US to change your mind and want to stay, but it is not allowed when you enter the US on F-1 status.

I'm not sure about this. So every student that is in valid status, attending school, married to a USC, can't AoS and leave the country while it is processing? He is not an overstay, he did not use an F1 simply to enter and immigrate, he used the F-1 for its intended purpose of studying, and he intends to enter the country on his F1 that is valid and is being used for its intended purpose. 

 

You might be right that it will be considered abandoned if he leaves before AP though. 

 

Overall your answer makes the most sense if he entered on F1 but it was no longer valid or being used or he overstayed. None of those are true

[geowrian 22,337]

2 hours ago, Arete88 said:

I don't think you understood my question.

 

I've been in the US with an F1 for a year already. I was doing my Master and I just graduated last week. Furthermore, I was accepted to a Ph.D. program that starts in August, so the University has to issue a new I-20, and I do not have to leave the country in between (my Ph.D. extends for another 5 years).

 

Paralelly, two months ago I filed for AOS, since my wife is American and I realized we will have to stay for at least 5 more years in the US.

 

The issue is that I have to travel in July for 2 weeks, for which I filed the I131 along with the I485, but since everything is super slow I doubt I'll get it before I have to travel. So, I am asking if I may travel with my F1 and my I-20.

 

That's my situation. I don't know where you're getting that such a thing may be fraud, since virtually everyone I know that has AOS from H1B travel in the meanwhile with their H1B, even when the AOS is pending.

I reread it as well as the rest of this thread and it seems that I understood it correctly. Your comparison to H-1B entrants is apples and oranges. H-1B visa holders can 1) exit the US without abandoning AOS and without AP, and 2) enter the US with intent to immigrate. F-1 holders can do neither of these activities.

 

37 minutes ago, KeratNY said:

I'm not sure about this. So every student that is in valid status, attending school, married to a USC, can't AoS and leave the country while it is processing? He is not an overstay, he did not use an F1 simply to enter and immigrate, he used the F-1 for its intended purpose of studying, and he intends to enter the country on his F1 that is valid and is being used for its intended purpose. 

 

You might be right that it will be considered abandoned if he leaves before AP though. 

 

Overall your answer makes the most sense if he entered on F1 but it was no longer valid or being used or he overstayed. None of those are true

They can leave the US fine. They can re-enter fine. They cannot leave the US after filing for AOS (and without AP) without abandoning their AOS application and likely needing a new visa to re-enter. They also cannot re-enter the US with intent to file for AOS. Upon each entry, an F-1 holder must have intent to return home. Whether that is the first entry, 10th entry, entry after getting married, etc. isn't the determining factor. If their intent legitimately changes after entry, that's permitted as well. But at POE, they cannot intend to stay in the US / file for AOS.

 

Edit: For clarity, once you have AP from a pending AOS application, you can enter on that with immigrant intent just fine.

Edited May 17, 2018 by geowrian

[KeratNY 76]

3 minutes ago, geowrian said:

I reread it as well as the rest of this thread and it seems that I understood it correctly. Your comparison to H-1B entrants is apples and oranges. H-1B visa holders can 1) exit the US without abandoning AOS and without AP, and 2) enter the US with intent to immigrate. F-1 holders can do neither of these activities.

 

They can leave the US fine. They can re-enter fine. They cannot leave the US after filing for AOS (and without AP) without abandoning their AOS application and likely needing a new visa to re-enter. They also cannot re-enter the US with intent to file for AOS. Upon each entry, an F-1 holder must have intent to return home. Whether that is the first entry, 10th entry, entry after getting married, etc. isn't the determining factor.

Geowrian usually (always) knows what he's talking about.  OP I'd take this last answer as the right answer unless you get an attorney's opinion (which you should for something so big). Definitely don't leave without significant assurance you are not abandoning application

[Arete88 4]

1 hour ago, geowrian said:

I reread it as well as the rest of this thread and it seems that I understood it correctly. Your comparison to H-1B entrants is apples and oranges. H-1B visa holders can 1) exit the US without abandoning AOS and without AP, and 2) enter the US with intent to immigrate. F-1 holders can do neither of these activities.

 

They can leave the US fine. They can re-enter fine. They cannot leave the US after filing for AOS (and without AP) without abandoning their AOS application and likely needing a new visa to re-enter. They also cannot re-enter the US with intent to file for AOS. Upon each entry, an F-1 holder must have intent to return home. Whether that is the first entry, 10th entry, entry after getting married, etc. isn't the determining factor. If their intent legitimately changes after entry, that's permitted as well. But at POE, they cannot intend to stay in the US / file for AOS.

 

Edit: For clarity, once you have AP from a pending AOS application, you can enter on that with immigrant intent just fine.

 

1 hour ago, KeratNY said:

Geowrian usually (always) knows what he's talking about.  OP I'd take this last answer as the right answer unless you get an attorney's opinion (which you should for something so big). Definitely don't leave without significant assurance you are not abandoning application

 

Yes. At first, it did not make sense to me and that's why I thought I was not being understood.  But after thinking about your answers for a while, I think you're right.

 

Many thanks to everyone!

Edited May 17, 2018 by Arete88

[Arete88 4]

1 hour ago, geowrian said:

I reread it as well as the rest of this thread and it seems that I understood it correctly. Your comparison to H-1B entrants is apples and oranges. H-1B visa holders can 1) exit the US without abandoning AOS and without AP, and 2) enter the US with intent to immigrate. F-1 holders can do neither of these activities.

 

They can leave the US fine. They can re-enter fine. They cannot leave the US after filing for AOS (and without AP) without abandoning their AOS application and likely needing a new visa to re-enter. They also cannot re-enter the US with intent to file for AOS. Upon each entry, an F-1 holder must have intent to return home. Whether that is the first entry, 10th entry, entry after getting married, etc. isn't the determining factor. If their intent legitimately changes after entry, that's permitted as well. But at POE, they cannot intend to stay in the US / file for AOS.

 

Edit: For clarity, once you have AP from a pending AOS application, you can enter on that with immigrant intent just fine.

 

Thank you so much. I still have a couple of questions regarding the comparison to H-1B, and I would be very grateful if you can put my doubts to rest.

 

1) H-1B are classified as non-immigrant visas as well as F1. Why do you say that you can enter the US with a H-1B with intent to immigrate? I would have thought that this is not possible.

2) You can indeed travel abroad with H-1B, but you can do the same with an F1 as long as you get the travel signature from the university. Why do you say that only in this last case you would lose your AOS process?

 

Thank you, again. You have been very nice!

Edited May 17, 2018 by Arete88

[geowrian 22,337]

11 minutes ago, Arete88 said:

Thank you so much. I still have a couple of questions regarding the comparison to H-1B, and I would be very grateful if you can put my doubts to rest.

 

1) H-1B are classified as non-immigrant visas as well as F1. Why do you say that you can enter the US with a H-1B with intent to immigrate? I would have thought that this is not possible.

2) You can indeed travel abroad with H-1B, but you can do the same with an F1 as long as you get the travel signature from the university. Why do you say that only in this last case you would lose your AOS process?

 

Thank you, again. You have been very nice!

No problem.

1. H-1B visas support what's called "dual intent". This allows them to be non-immigrant visas but permit immigrant intent. Most visas, including student and tourist visas, do not support immigrant intent. Specifically, the part regarding non-immigrant intent is under INA 214(b). This section of the INA explicitly exempts certain classes of aliens from the non-immigrant intent provision. I forget exactly what classes this entails, but I know H-1B, L-1, O-1, and E-2 visas support this. I think there's a couple more that do as well (U and V visas maybe?). K-class visas support immigrant intent as well.
2. If you exit the US with a pending AOS application and without AP being granted, USCIS policy is to treat the application as abandoned and deny it (and any dependent applications like the EAD and AP). This is the case for (almost) any visas type unless you are granted AP prior to departure.
   1. I had to do a little lookup to find the specific section of the INA, but it's under INA 245.2:
      (ii) Under section 245 of the Act . (A) The departure from the United States of an applicant who is under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of the proceeding by reason of the departure. Except as provided in paragraph (a)(4)(ii)(B) and (C) of this section, the departure of an applicant who is not under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of any pending application for adjust ment of status, unless the applicant was previously granted advance parole by the Service for such absences, and was inspected upon returning to the United States. If the adjustment application of an individual granted advance parole is subsequently denied the individual will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the Act. (Paragraph (a)(4)(ii) revised effective 7/1/99; 64 FR 29208 )
   2. The exceptions listed above includes certain classes of aliens exempt from that restriction, such as H-1B holders again.