out of status F1 to AOS

[alice2010]

Dear all,

Here is my situation.
My fiance filed his citizenship yesterday. We will apply my greedcard right after he gets his citizenship. I am in OPT after graduation, and haven't been able to find a job, and will be "out of status" after 90days unemployment on April 18. Supposed he gets citizenship, I understand as long as I am an immidiate relative of him, my out of status will be forgiven. It is very likely I will be out of status when we file I485 considering the duration for citizenship processing.
However, I found an lawfirm website saying that if I am out of status at the time of filing, I can stay in US, BUT my out of status will accumlate during the whole process until I get greencard. It means according to the duration of the process or if it is delayed substatially or denied unfortunately, I will be bared by 3 to 10 years exclusion by being out of status over 180 days. For people who become out of status AFTER they filed will not accumlate any more. That's the wabsite is saying.
I am still trying to find a job, but in case I am out of status, I am wondering which way really I should go.

My questions are:
1)Will it not really affect having out of status when they examine our petition?
2)Will it not really stop the time of out of status, if we apply AFTER I become out of status?
3)If I apply AP at the same time, how they consider/count my out of status before the duration reaches to 180 days, since I may have family emergency back in my home country.

Yeah, I really regret, we didn't plan in ahead. Well, it is simply because his committment fobia!

Anyway, it would be very helpful if someone out there could give me hints.

[aaydrian]

OPT to F-1

Dear,

many are in your case. But don't worry, what the law firm website says is correct, if you are out of status before AOS the period accumulates, but if you are legal and have applied fro AOS then your status changes, so theoretically if you applied for AOS and got your receipt before April 18th (i.e. when your OPT expires) then technically you don't need any status till the receipt of your GC.

Now SEVIS (USCIS) allows a period of 60 days after your end of OPT to leave the country, only after that the 180 days rule comes into effect. You have many possibilities, 1. Get a job and go to H1, given the processing time you may be out of status by then. 2. Convert your self to F-1 again. Now you did not indicate as to if you did your undergraduate or graduate education. If you did your UG then you could study for GRE/GMAT and you get 6 months for each to do it here in the US, if you are a Graduate and did your masters, and if your GRE/GMAT has expired then you can again retake the exams by studying for it from institutions like Kaplan which will provide you with F-1 visa, but you have to start processing it before April 18th.
You can also apply for may research positions in institutions and apply for J-1 visa but be aware that you be subject to the 2 year bar.
Last but not the least you an apply for AOS while being out of status, as a wife of a USC you can get waiver provided you are still in the US.
But i would advise you be remain legal, it may be hard but that's the right way. Cause if you are legal then you don't need an attorney when you file AOS and that will save you minimum $2000.

Disclaimer: I am not an attorney, please use any advise at your own risk

[alice2010]

Thank you! ravi_niu

You gave me a great hint!
I completed my master's degree, but timeline may not allow me to find research institutions and here in my town somehow they don't want me even as an volunteer. Well, they don't like foreigners, I guess. I applied a banch of places. No way for H1. I already contacted some colleges, but it also was too late for apply now. So, I would try Kaplan you mentioned! I did not know that at all. Honestly, My current DSO is "mean", I would have to say, and gave me the least information for anything.

Regarding grace period, I was told that if I cross 90 days unemployment, I am not eligible for the grace period and have to depart excactly before April 18.

Now, I found an information about out of status. There is tow concept of "unlawful status" and "unlawful presense".
We F1 students have D/S(duration of status) on our I-94, so even if we become out of status, lets say by dropping out from school, it doesn't start our "unlawful presense" which triggers 180 days overstay(3 y bar). It is because the starting point of unlawful presense is the specific date on I94. It sounds tricky but I guess that's how the law operates. When USCIS find out my out of status, which means when they denies my ASO, my "unlawful resense" will kick in.

Even though, I would much prefer to stay in lawful status, if it is possible, of course!! I don't want to take unneccessary risk!! So, I will try that Kaplan.

Any further input would be greatly appriciated!
Thank you!

[aaydrian]

Well with all that you have told, i think your best bet is to get admitted to any vocational college, or training institute on F-1 and keep you status legal. The DSO for example at Kaplan needs minimum 45 days for the process to complete and you should have enrolled at the other school before April 18th. It depends on the speed of your DSO at your current school as they have to transfer the paper to the new institution with a no objection. That way you gain 6 months more time and by that time your hubby will have his citizenship. Thus you should be fine.

Regarding the unlawful status even though the I-94 says D/S it is not enough. The day you become out of status on F-1 is the day your DSO at your current school enters the last date of attendance in SEVIS. That is your day when you officially become out of status and the 3 yrs ban rule starts to kick in.

Disclaimer: I am not an attorney, please use any advise at your own risk

[alice2010]

no Kaplan

Hi,

I have already contacted to Kaplan, but unfortunately I need to attend their specific locations which are not accessible for me. Also, their programs for GRE will last just from 1month to 2months, even though will I have 6 months lawful status? I searched available schools. Community college is not able to let me attend before April 18. Well, will continue to search, but maybe too late.

I am still looking into volunteer opportunities, however I really need to clarify how my status will be in case for jobless. I think I would visit an lawyer for an opinion, and maybe Homeland Security before the expiration. Since I still have an option to come here again as his fiance, even if it takes time, it is legal.

I would be greatly thankful to any further opinion.

[aaydrian]

well alice i did some research regarding your situation, it seems the 60 days grace period does not apply to you as you will be terminated at the end of 90 days unemployment, as technically you have not completed your OPT till the end date on your EAD. Had you remained in employment till the end date of your EAD you are eligible for the grace. Anyways if you leave after April 18th, go back to your country, and try to come again on your spouse petition, you may be subject to the bar. I know it sounds absurd, but it can happen. This was what conveyed to me. Thus don't leave the country. So then you can try other vistas, if not once your hubby becomes a USC you can apply for waiver and get a GC even if you are illegal by then. You should not have a problem in that way.

Kaplan gives three months 1-20 for GRE depending on the duration of the course it may be 1 or 2 months, you can ask for extension on that I-20, the maximum time allowed is 6 months. More than 6 months they will not allow.

Disclaimer: I am not an attorney, please use any advise at your own risk.

[alice2010]

my unlawful status

Well, thank you for further inquiry for me...You are kinder than my fiance I am still looking for work, too.

Anyway, as you indicate, my DSO will terminate my status on SEVIS, I am sure. You say my unlawful presense will kick in on the date she inputs my data. Some lawyers on internet clearly say my unlawful presense will kick in when ICE finds me(it can happen lately) and put me on removal procceding, or when USCIS denies my AOS. This unlawful presense accrues 180 days overstay. Unlawful presense is different from unlawful status, or out of status.

Here is a big distinction, if you are already unlawful presense when you apply AOS, your unlawful presense will continue to accumulate during entire proccess until you actually get GC. Filing AOS does not stop this accumulation. One can not predict how long it would take. So, you may have to wait in US sometime for a few years.

My point is I don't want to accure this 180 days, because I have a sick father in my home country, so I want to get AP along with AOS.

So, it is very critical for me to make sure when my "unlawful presense" will kick in and how it can happen(such as ICE knocking on your door), and have to find a sure way.

I would have to meet a lawyer by myself, I think. My fiance is not cooprative and postphoneing to make an appointment.

Any further input would be helpful...

[aaydrian]

Sure Alice find out from a lawyer and post your findings, but people in F-1 who were out of status have applied for AOS and married to a USC, posted their experience on this web site, all of them have got their GC in 6 months.

Sure if you are out of status you have to file a $1000 fine on top of the fees when you apply for I-485.

The 180 days out of status/unlawful presence actually is counted from the day your DSO puts you out of status. They will retroactively asses the dates. Thus after April 18th your time starts to kick in. If you want to remain legal so that your fiancee can sponsor you, and also you can travel, then you need to depart the country before 12.00 a.m. on April 18th, period! Or change your status. It is clearly stated on SEVP policy guidance handout which they updated on 04/10/2009. Just Google it you will get the document. I am quoting you from that.

Disclaimer: I am not an attorney, please use any advise at your own risk.

[alice2010]

I checked the guidance you indicated, it gave me some more information. Thank you.

There, it says "Taken action to otherwise maintain legal status" prevents me to violate my status. I need to know if the filing of I130 can satisfiy the condition. Will meet a lawyer.

Well, I might have missed something on the article, but it doesn't specifically indicate that the date I exceed 90 days unemployment will be the beginning of my unlawful presense. unlawful presense doesn't start when I violate my status. It says they may examine and terminate my record. However, the immigration law says students will start accruing unlawful presense(of 180 days) on the date judge ordered me to depart after ICE's putting me on removal procceding. To me, still it is not clear when I will start unlawful presense.

Anyway, I feel toasted enough searching for correct information.
Maybe a good time to get legal advice.

[aaydrian]

Hi Alice,

well i would like to rectify one of my earlier post. If you are a wife of a USC you do not have to file I-485A that means you save the $1000 in penalty. After 90 days unemployment you have been deemed out of status, which you are right does not amount to unlawful presence. The DSO would put in the date of last employment and it up to SEVP/USCIS, to decide which date starts your unlawful presence. Generally they send a letter informing you of that and unlawful presence probably starts from that day. The USCIS is not clear about that but i was told generally the time of unlawful presence starts ticking from the date the letter was issued. Thus you are right, but i was also told in removal hearings the decision of the judge is final (regarding unlawful status) thus it is left to authority to adjudicate that. No one can possibly predict that now. So there is a lot of ambiguity regarding this. Please ask a competent attorney regarding this and also keep me posted as it may also help us guide some unfortunate soul in the future.

USCIS says that filling I-130 (or I-140 for that matter) only does not maintain one in legal status here in the US. The person should also have filed I-485 (Application to register as a PR or Adjust status) to be independent of the visa status. There may be some loophole regarding this, if you can find it from the Lawyer it would be awesome.

One more thing which was conveyed to me was that if possible ask your mentor/adviser at your University if he/she can accept you as a volunteer, even if you are not physically at you university you can be a de facto research assistant from far in the USA. This has been done before and USCIS has had no problem. Keep me posted of your findings. Chow


Disclaimer: I am not an attorney, please use any advise at your own risk.

[alice2010]

Updating

I am updating my situation.

Under an uncertain situation like I have (waiting for my fiance's naturalization, yet unfiled I485 and unseen duration, etc), everything is in speculation. So, I decided it is wise to avoid out of status (unlawful status) by all means, which may trigger future obstacles and costs as well. So, I thought I don't need regal advice at this point. Regarding unlawful presense, USCIS is very clear on when it starts and you can find that on internet, Just google, F1 D/S unlawful presense.

Here is my findings.

1.the duration of naturalization really depend on your local office. We have heard from a friend of his that he got processed it within two months recently. I didn't find this information at any of other websites including this one. So, it would be much more precise if you ask somene you should ask (can be local lawyer, any local aquaintance who experienced it recently, local Homeland Security!).

2.guideline for OPT states that in order to avoid violating your status, "applied another SEVIS certified school...." I found Intensive English Program for forigen students at my local university, who can extend my I20 and cover the gap between my expiration date of OPT and the beginning of their program. I don't need to enroll in time, but I need to apply in time. They told me they would make a request for me, which I am not sure what it exactly means. It applies for my case, every student should check in with knowledgeble stuff at your international office, because the duration they can extend and other conditions can vary depending on your specific situation.

3.free legal advice such as Avvo or other lawfirm's websites were very helpful for me. You may not get specific advice, but you can get relatively precise information at least not a guess.

I have possible places for volunteering. If they admit me, that is the best. Otherwise, in my case, I can enroll the English program. I think that's would be my choice at this point.