EAD while AOS pending if AWA is involved?

[Katherine93 30]

Well first off, my husband (USC) and I (F1 student) are planning to file for my AOS at the beginning of next year because we need to collect some documents. I'm currently on F1 visa and my status is valid till 2018 if I don't file AOS. The reason I'm debating if I would even want to file AOS is that upon graduation I have a great job offer waiting for me, if I stay in F1 status I can use my 12 months of OPT and then the company could file H1B for me. If I file AOS then I would be using the EAD because filing AOS would prevent me from getting OPT in the future. There is a slight chance that my husband's conviction might fall under AWA, although the attorney told us most likely it won't. I just want to be safe, especially when my work eligibility is involved.

My questions is: if you case falls under AWA, and your AOS is pending, are you still able to get EAD and how soon do you get it? Is it true that it will be valid and you can renew it if the case is still pending until your AOS is eventually denied?

Thank you so much in advance!

[TBoneTX 43,020]

*** Thread moved from IMBRA subforum to the "AOS from WS&T Visas" main forum -- AOS seems to be the chief situation, with the Adam Walsh Act mixed in. ***

Edited April 25, 2015 by TBoneTX

[NikLR 13,220]

Yes. But if it may fall under AWA then I suggest going the safe route of finishing school and getting the H1B. That is a dual intent visa and you can become an LPR in that manner.

[Katherine93 30]

Yes. But if it may fall under AWA then I suggest going the safe route of finishing school and getting the H1B. That is a dual intent visa and you can become an LPR in that manner.

NLR - thank you for the reply!

Yeah I have been debating on which route I should go. My husband's conviction does not fall under AWA but the original charge does, that's why the lawyer said there is a decent chance that the USCIS would just let it slide. If I file AOS, two things could happen - 1. USCIS does not think it falls under AWA and the AOS proceeds normally, I get my green card and everyone is happy. 2. USCIS determines that it falls under AWA and our case goes into the long waiting process hoping it would get approved, in the meantime I use the EAD to work until I graduate and the company files H1B for me, even if eventually my AOS gets denied.

On the other hand, if I go the route of finishing school and getting the H1B, there is still a 30% chance that I might not win the H1B lottery...

[NikLR 13,220]

I would talk to a few good lawyers and find out what they have to say. A few names have been thrown about on VJ, I don't remember them to be honest, but maybe some veteran members may if you start a post related to finding a good lawyer. You don't need to state why you want one if you don't want to.

[Sandra G. 5,009]

AOS is adjudicated in 5/6 months. In case of AOS denial YOU CANNOT use the work permit anymore,since the EAD is revoked by the AOS denial.

When are you graduating? Every year USCIS accepts H1B visa petitions starting on April 1st,2015, and the alien can start working for the new employer on October 1,2015(every fiscal year) in the meantime the alien has to keep the status in the USA until the alien starts working in October. It's recommended to have the job offer around February and get everything ready to file for H1B in April. There is no cut-off date for filing H1B visas. But once the cap has been reached the alien cannot file for H1B visa anymore. There is the Regular Cap, and the ADE Cap.

Regarding your question "... if your case falls under AWA, and your AOS is pending, are you still able to get EAD and how soon do you get it? ".Once the AOS is pending you can get EAD.Usually USCIS takes 30/90 days to issue the work permit. USCIS will not approve an EAD if the AOS is denied or if you have a motion to reconsider pending.

To fall under AWA it must be ANY specified offense against a minor involving sexual conduct (including consensual sexual contact with a child under the age 18), solicitation to practice prostitution;or kidnapping etc...The BIA held the AWA applies even if the conviction occurred years before the Adam Walsh Act became Law.

You can read the statutory list of criminal activity in the Adam Walsh Act that may be considered a specified offense

http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/adamwalshact020807.pdf

Edited April 25, 2015 by sandranj

[Katherine93 30]

AOS is adjudicated in 5/6 months. In case of AOS denial YOU CANNOT use the work permit anymore,since the EAD is revoked by the AOS denial.

When are you graduating? Every year USCIS accepts H1B visa petitions starting on April 1st,2015, and the alien can start working for the new employer on October 1,2015(every fiscal year) in the meantime the alien has to keep the status in the USA until the alien starts working in October. It's recommended to have the job offer around February and get everything ready to file for H1B in April. There is no cut-off date for filing H1B visas. But once the cap has been reached the alien cannot file for H1B visa anymore. There is the Regular Cap, and the ADE Cap.

Regarding your question "... if your case falls under AWA, and your AOS is pending, are you still able to get EAD and how soon do you get it? ".Once the AOS is pending you can get EAD.Usually USCIS takes 30/90 days to issue the work permit. USCIS will not approve an EAD if the AOS is denied or if you have a motion to reconsider pending.

To fall under AWA it must be ANY specified offense against a minor involving sexual conduct (including consensual sexual contact with a child under the age 18), solicitation to practice prostitution;or kidnapping etc...The BIA held the AWA applies even if the conviction occurred years before the Adam Walsh Act became Law.

You can read the statutory list of criminal activity in the Adam Walsh Act that may be considered a specified offense

http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/adamwalshact020807.pdf

Hi!

Thanks for the reply!

I'm graduating from my master's in May 2017. I'm currently in my bachelor'r program and will have a full-time job offer signed in summer 2016 but it won't start until I get my master's degree (public accounting firm). I understand how H1B works and that I will need to keep the status during the gap between F1 and H1B. As far as I know, the USCIS accepts all applications until the deadline and then conduct a “lottery" if the amount exceeds the cap to decide which applications they will open and process. Although I may have a higher chance of winning the lottery for having an advanced degree, there is still a possibility that I may not win the lottery.

I have done an extensive research on AWA and have consulted a few experienced attorneys. The attorneys think that our case does not fall under AWA but of course, there is no guarantees as you just never know with the government...Our case is different from what I've seen on this forum: my husband the petitioner was arrested and charged with a sexual offence that involves a minor, but the prosecutor felt the charge was inappropriate so she reduced it to a misdemeanor of telephone communication harassment and cyberbullying. My husband was 18 while the victim (his ex) was 16. So I would assume that on a background check the arrest record would show the sexual offense but the conviction would show the non-sexual misdemeanor. I haven't seen anyone who has a similar case on this forum.

Honestly I just wanna make sure that I have a valid EAD to work until my H1B is approved. I know it would the safest if I just stayed in school and use OPT till I get H1B, but I also want to get my green card asap so I don't have to deal with all these restrictions on employment, travel, etc. etc...

[Villanelle 4,121]

Honestly- I would take advantage of any other forms of visas or routes to a greencard that I could and leave anything relating to AWA as a last resort---

But with that being said, I do agree with the attnys that you spoke to. I do not think it falls under AWA. Thats not to say that they wont attempt to block you using it and you wont be tied up in a lengthy and costly appeals battle trying to prove you dont. Hence, try to avoid it at all costs.

The law is very specific about the word 'conviction'. If you have been convicted of a specified offense. Not charged with, not suspected of. You have to be convicted of. It all ties into one of the basic principles of this country. Innocent until proven guilty. The police can charge you will all kinds of crimes. It doesnt mean anything unless you are found guilty or plead guilty. Once you are- yes, things change. Reading the memo Sandra linked, iyou see how if you are convicted of the specified offense then yes, they do go back and review everything that happened from the charges to the mitigating circumstances etc. But if someone was arrested and found not guilty - theres no conviction, just an arrest record. But thats off topic.

For your specific situation I would guess that the system would show the conviction just as it would any other non AWA conviction. It should be a non issue.

I would assume some physical person would have to manually look at it and look into the mitigating circumstances of it- what was the original charge/what was the outcome? (which they shouldnt because it isnt a AWA conviction) and decide to use the broad law on it to RFE you for more info.

But this is just speculation because I do not know how the internal flagging system works at USCIS- nor does it appear the lawyers you spoke to do either. There is nothing posted online and even if there was, what help would it be? The policy memo at face value seems to be on your side, that you are eligible since there was no (sex offense) conviction. But again- are you prepared to fight it out in appeals court right now if you happen to get an officer who disagrees?

[Katherine93 30]

Honestly- I would take advantage of any other forms of visas or routes to a greencard that I could and leave anything relating to AWA as a last resort---

But with that being said, I do agree with the attnys that you spoke to. I do not think it falls under AWA. Thats not to say that they wont attempt to block you using it and you wont be tied up in a lengthy and costly appeals battle trying to prove you dont. Hence, try to avoid it at all costs.

The law is very specific about the word 'conviction'. If you have been convicted of a specified offense. Not charged with, not suspected of. You have to be convicted of. It all ties into one of the basic principles of this country. Innocent until proven guilty. The police can charge you will all kinds of crimes. It doesnt mean anything unless you are found guilty or plead guilty. Once you are- yes, things change. Reading the memo Sandra linked, iyou see how if you are convicted of the specified offense then yes, they do go back and review everything that happened from the charges to the mitigating circumstances etc. But if someone was arrested and found not guilty - theres no conviction, just an arrest record. But thats off topic.

For your specific situation I would guess that the system would show the conviction just as it would any other non AWA conviction. It should be a non issue.

I would assume some physical person would have to manually look at it and look into the mitigating circumstances of it- what was the original charge/what was the outcome? (which they shouldnt because it isnt a AWA conviction) and decide to use the broad law on it to RFE you for more info.

But this is just speculation because I do not know how the internal flagging system works at USCIS- nor does it appear the lawyers you spoke to do either. There is nothing posted online and even if there was, what help would it be? The policy memo at face value seems to be on your side, that you are eligible since there was no (sex offense) conviction. But again- are you prepared to fight it out in appeals court right now if you happen to get an officer who disagrees?

I think you are right. I should probably just use the work authorization that I have from my student status until it expires. Just thinking about the possibility of having to deal with AWA stresses me out. This job offer is something I have worked so hard for and I can't afford to take a risk on losing my work authorization. So you are right, so is everyone else who replied, I think I will just wait till my options run out to file AOS. Kind of frustrating but better than having to deal with AWA I guess :/

[NikLR 13,220]

At least you have multiple options if it comes down to it.

[Katherine93 30]

At least you have multiple options if it comes down to it.

True. I'm just getting tired of all the restrictions of employment. Being an international student, I have to work way harder than those who are citizens/LPR to reach my career goals...I have had a job offer which everyone would dream of but got rescinded because of citizenship. Now I have finally got a even better offer and the company will sponsor my H1B, I still get stressed sometimes because of all the possibilities of either the company changing their mind or my H1B not winning the lottery when it comes down to it. But I guess that's just what I have to go through being a non-citizen in this country My husband just never understands my frustration because he was born with the citizenship and he never has to worry about things that I worry about.

[NikLR 13,220]

Because I don't know much about it I was trying to read up on the process. If you have you master's degree, you're put into the above cap pool of 20000. If you're not selected in that group (randomly) then you are put in the main group of 65000. Should that fail as well, you can look at the AOS as a spouse of a USC. It does suck because you've put in a lot of effort in the USA to be able to stay here and have a good career. You're right that a USC or LPR doesn't really have to think about it much at all. (It's part of the reason I came on a CR1 not a K1, because I did not and could not worry about having the ability to travel or work.) Likely when you started school here the was no lottery because of the recession. I do wish you the best and hope it works out for you.

[Katherine93 30]

Because I don't know much about it I was trying to read up on the process. If you have you master's degree, you're put into the above cap pool of 20000. If you're not selected in that group (randomly) then you are put in the main group of 65000. Should that fail as well, you can look at the AOS as a spouse of a USC. It does suck because you've put in a lot of effort in the USA to be able to stay here and have a good career. You're right that a USC or LPR doesn't really have to think about it much at all. (It's part of the reason I came on a CR1 not a K1, because I did not and could not worry about having the ability to travel or work.) Likely when you started school here the was no lottery because of the recession. I do wish you the best and hope it works out for you.

Thank you!!