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SuMy

Waiting for F-1 while aged-out

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Hi,

I am currently living in the US on an H-4 visa that is valid till Sept. 04, 2018 while attending a university for Bachelors. My I-539 application for Change of Status application to F-1 was received by USCIS in March, 2018 and is being processed. I turned 21 and aged-out on May 01, 2018. My I-20 has a start date Sept. 04, 2018 (the date which on classes will start).

a) Given these circumstances, do I have to file any additional applications to bridge the gap in status?

b) If I am already out-of-status, do I wait for my F-1 or should I leave US?

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I believe that you are OK, based on something called 'tolling for a good cause'..which means you submitted a timely application for the COS while still in status, and are thus protected against unlawful presence during the processing time. This window of 'protection' is necessary since 99% of any applications submitted to USCIS need months of processing time...(just because there are far fewer adjudicators per the number of applications submitted)

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You will have to get a F1 visa and return at the appropriate time up to 30 days before classes start.

If your family has an Immigration Lawyer, you should consider discussing the future with her.

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Basically

""By way of background, section 212(a)(9)(B)(ii) of the Act states that an alien who is present in the United States without admission or parole, or who remains in the United States beyond the period of stay authorized by the Attorney General, accrues unlawful presence towards the 3 and 10 year bars under section 212(a)(9)(B)(i)(I) and (II) of the Act. Section 212(a)(9)(B)(iv) of the Act is a tolling provision that covers certain nonimmigrants. If an alien has timely filed a nonfrivolous application for E/S or C/S, the first 120 days of unlawful presence are not counted towards the 3 year bar under section 212(a)(9)(B)(i) of the Act. Section 212(a)(9)(B)(iv) of the Act further states that the alien must have been lawfully admitted or paroled into the United States, and must not have been employed without authorization before the E/S or C/S application was filed or while it was pending.""

 

PEARSON Memo of 2000.

 

 

Edited by pontevecchio

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