What shall I do at this moment.(merged)

[SusieQQQ 11,586]

1 hour ago, nastra30 said:

My two cents. Please anyone correct me if I'm wrong.

1. OP, can use the dates for filing to begin the AOS process by filling form I-485 and submitting to USCIS. https://www.uscis.gov/visabulletininfo

2. What this means is that USCIS will process and proceed with everything up to and including interviews. However, the officer will not approve the application even if everything checks out, but will instead put the application in AP. USCIS will then approve the AOS and send green card whenever the I-130 is approved and the priority date becomes current (visa # becomes available) based on final action dates.

3. Now, this allows applicant to concurrently & additionally file form I-765 (Employment Authorization) and form I-131 (Advance Parole).

4. OP's F-1 status is still active so he's legally in the country but can't legally work until EAD is approved unless OP has CPT or OPT. Also, having a pending form I-485 (with receipt), also makes him legal even if F-1 status expires unless I-485 gets rejected; however can only work with an approved EAD.

Re #4, if he uses his EAD he invalidates his F1 status and moves into adjustment pending status. That is authorized stay but it also has risks, as I highlighted in an earlier post. There is no “dual status”.

[geowrian 22,337]

Yup, using a benefit of AOS (i.e. an EAD or AP) not granted on one's existing status is what would invalidate status. The authorized stay would remain. The only issue is if AOS were to be denied then there would be no status to fall back on.

[SusieQQQ 11,586]

5 minutes ago, geowrian said:

Yup, using a benefit of AOS (i.e. an EAD or AP) not granted on one's existing status is what would invalidate status. The authorized stay would remain. The only issue is if AOS were to be denied then there would be no status to fall back on.

...that’s quite an important issue imo. We do see people unexpectedly denied every so often and having to reapply. If you have no fallback status, and you are a spouse of LPR where you can’t overstay to adjust, then OP will have to go to home country and go through consular processing. Rather disruptive. 

 

I also believe that as with any other denied change/adjustment, if denied then overstay backdates to the date original status stopped being valid, which in this case would be the date EAD was used. Given the length of time between dates to file and priority date, and expected time from current VB till when OP’s PD might be current and then adjudicated, any such overstay might well be in excess of the 180 days that would trigger a ban. (If I’m understanding all this correctly.)  The risk of denial might be small (or might not depending how well the AOS package has been put together) but the potential disruptions in the case of a LPR spouse are pretty big and not something I’d risk. 

[nastra30 2,284]

3 hours ago, SusieQQQ said:

Re #4, if he uses his EAD he invalidates his F1 status and moves into adjustment pending status. That is authorized stay but it also has risks, as I highlighted in an earlier post. There is no “dual status”.

I stand corrected. The best case scenario is just to file the adjustment of status without applying for EAD or AP; then his F-1 status is not affected and can fall back to that if AOS is denied. In this scenario, F1 status is unaffected and AOS also provides legal stay at the same time. 

LSU has a nice explanation for OP's circumstance:

https://www.lsuhsc.edu/administration/academic/ois/travel_while_pr_pending.aspx

[SusieQQQ 11,586]

Just to clarify, applying for /being granted EAD/AP does not invalidate existing status - but using them does.