Immigration Issues/EAD/F1 and AP

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QUESTION: Dear Sir,

I am currently on F1 visa with my husband and three children as dependents (F2). On the other hand, my husband has a pending AOS based on an employment petition (with us as his dependents) and is currently working using his EAD (I received mine but have not used it because I am afraid that if I use it, I would lose my F1 status).

Sir, my questions are:

1.) Do we have to apply for an AP if we have to leave for Canada once our Canadian independent immigration application is approved? or can we just depart and not be barred from entering should we plan to visit in the future, considering our dual status as pending AOS-F1/F2?

2.) If we apply for Advance Parole and do not wish to abandon the I-485, how long should are we allowed to stay out of the US?

3.) I recently got a job offer (part-time) and I am contemplating on using my EAD and maintain my F1 status at the same time. Is this allowed or will it mean an abandonment of my F1 status and a switch to pending AOS status?

Thank you very much for your kind assistance.

Sincerely,
Sabrina


ANSWER: Sabrina,
I assume that you and your family have filed for the Adjustment of Status too. If this is so then:
1) You would need to use your AP to reenter the US. You cannot leave the country and try to reenter on F-1 visa if you have applied for Adjustment of Status.
2) For as long as the validity of the AP (one year). Provided the AOS application does not get approved while you are outside the US
3) You cannot use EAD and be on F status at the same time.

Sincerely,
Ramasamy Krishnan
www.ashleykrishnan.com

---------- FOLLOW-UP ----------

QUESTION: Dear Sir,
Thank you very much for your very quick reply. I cannot believe that I will get such a quick answer. I haven't even finished reading all the past questions and answers on this subject.

Sir, my follow-up questions are:

1.) Is it alright to not apply for AP at all, which I understand would mean an abandonment of my husband's (and ours) AOS?

I am asking because I fear that the employer who petitioned him will soon close shop and we will eventually get a denial of AOS. therefore, we are seriously considering moving to Canada as immigrants.

2.) If we abandon our AOS by not applying for AP when we eventually immigrate to Canada, will we be able to go back (if we apply as tourists or as Canadian citizens) to visit my USC parents, without any questions at the POE?

I am asking this because we came as visitors and the visas on our passports were B1/B2 visas and we only applied for adjustment of status to F1/F2 after we arrived in the US.

What documents do we need to show as proof that we did not overstay, in case we go back for a visit?

Once again, thank you very much for your very prompt reply.

all the ebst,
Sabrina  

Answer
Sabrina,
1) You understand right it will mean abandonment of the AOS applications. Unless you have a valid nonimmigrant visa such as H or L. You failed to mention this. So my answers are based on the information have in front of me.

2) On becoming US citizens or permanent residents you are eligible to file for your B visas but you would need to prove that you are settled in the US and have no intent of immigrating.

Sincerely,
Ramasamy Krishnan

Immigration Issues

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Ramasamy Krishnan

Expertise

Immigration particularly business immigration and National Interest Waivers.

Experience

I have over 7 years of experience in all facets of immigration law. Specifically focusing on filing of National Interest Waivers (NIW), Alien of Extraordinary Ability and Outstanding Researchers/Professors petitions for Ph.D's and other advanced degree professionals. I have also assisted clients in numerous PERM, H-1b, L and other nonimmigrant visa applications. I am a partner at the law firm Ashley & Krishnan, www.ashleykrishnan.com

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