i-20 visa, lost EAD card - travelling outside of country

[gongmyung 0]

Hi everyone, I'm asking this on the behalf of my newly wed wife. She is a Hong Kong resident & South Korean citizen, I'm a US citizen and we live together in Chicago. She currently is in the USA on an OPT visa (after completing her college degree & masters on an F1 visa).

We got married a couple months ago, but we have held off on applying for marriage visa because we had travel plans for Christmas and NYE and wanted to not have to worry about leaving & reentering the states while the visa was pending.

Right now I am in Singapore for 2 months for work - she was going to come visit me (and her family in HK) early December through NYE. Unfortunately, she lost her Employment Authorization card. She still has her I-20 visa, and a photocopy of the EAD card. Her adviser from school told her she cannot re-enter the USA without her EAD card. Since it takes 3 months for a replacement EAD card, this means that all our travel plans will be canceled and she will not be able to visit her family as well.

Do we have any other options, or is it maybe possible for her to reenter the US with just the I-20 and not the EAD card? Any advice would be greatly appreciated, thank you very much.

Edited November 16, 2015 by gongmyung

[Mollie09 1,543]

The EAD is valid only for employment, she shouldn't need it to reenter the country. That being said, I was in a similar situation (CPT without EAD) and was sent to secondary by an ill-informed CBP agent.

If she has a valid I-20, especially with a photocopy of her EAD, she should be ok.

[Elf 146]

If she has a valid I-20, especially with a photocopy of her EAD, she should be ok.

This is incorrect. Her situation is not the same as an F-1 who is returning only to complete their OPT/CPT but has lost their EAD. She's a non-immigrant visa holder traveling with her newlywed USC spouse. A CBP officer would be entirely justified in denying her re-entry to the US on the basis of presumed immigrant intent. At that point, she would have to return to her home country and file for a CR-1 visa, which would mean being separated for up to a year before she could return to the US.

Even if you think she would probably manage to successfully re-enter the US with a valid I-20 and F-1, she should not do this. An F-1 is a non-immigrant visa, and her USC husband has already said that they plan to apply for her AOS on the basis of her marriage to a USC. She would have to misrepresent herself to CBP on re-entry as having nonimmigrant intent, when she actually plans to immigrate. If she applies for AOS shortly after her return, based on a marriage that took place several months before the trip outside the US, it will immediately raise red flags for any IO reviewing her AOS application. While it will not necessarily result in a denial (in Matter of Cavazos, the BIA held that if preconceived intent is the only adverse factor in an application for the AOS of an immediate relative of a USC, the application should be granted), it is likely to result in much closer scrutiny of the application and potential delays in approval. Of course, if there are any other adverse factors in the application, preconceived intent could prompt a denial.

If I were in her position, I would not travel outside the US until the AOS application had been filed and AP received.

Given that you married "a couple of months ago", you would probably have been safe to apply for her AOS immediately after your marriage - EAD/AP is usually received 60-90 days after receipt of the AOS package, so you would very likely have had her AP in hand in time for the two of you to travel over the holidays.

[Elf 146]

- Moved from Work Visas to Student & Exchange Visitor Visas - question is about entering in F-1-OPT status with intent to AOS -

[Mollie09 1,543]

This is incorrect. Her situation is not the same as an F-1 who is returning only to complete their OPT/CPT but has lost their EAD. She's a non-immigrant visa holder traveling with her newlywed USC spouse. A CBP officer would be entirely justified in denying her re-entry to the US on the basis of presumed immigrant intent. At that point, she would have to return to her home country and file for a CR-1 visa, which would mean being separated for up to a year before she could return to the US.

Even if you think she would probably manage to successfully re-enter the US with a valid I-20 and F-1, she should not do this. An F-1 is a non-immigrant visa, and her USC husband has already said that they plan to apply for her AOS on the basis of her marriage to a USC. She would have to misrepresent herself to CBP on re-entry as having nonimmigrant intent, when she actually plans to immigrate. If she applies for AOS shortly after her return, based on a marriage that took place several months before the trip outside the US, it will immediately raise red flags for any IO reviewing her AOS application. While it will not necessarily result in a denial (in Matter of Cavazos, the BIA held that if preconceived intent is the only adverse factor in an application for the AOS of an immediate relative of a USC, the application should be granted), it is likely to result in much closer scrutiny of the application and potential delays in approval. Of course, if there are any other adverse factors in the application, preconceived intent could prompt a denial.

If I were in her position, I would not travel outside the US until the AOS application had been filed and AP received.

Given that you married "a couple of months ago", you would probably have been safe to apply for her AOS immediately after your marriage - EAD/AP is usually received 60-90 days after receipt of the AOS package, so you would very likely have had her AP in hand in time for the two of you to travel over the holidays.

Apologies, you're right. I was answering based only on the I-20/EAD issue, but entering the US on a non-immigrant visa with immigrant intent is fraud, with or without the EAD.

[Elf 146]

Apologies, you're right. I was answering based only on the I-20/EAD issue, but entering the US on a non-immigrant visa with immigrant intent is fraud, with or without the EAD.

No worries. For an F-1 re-entering to complete OPT/CPT after a brief vacation, or anyone else who genuinely intended to leave at the end of their authorized stay, your answer was absolutely right. As you say, it's the immigrant intent that's a huge problem.