F1 OPT EAD approved but failed to graduate. Am I out of status?

[JJill123]

Hi Forum! The following sequence of events occurred in my case and I am now being notified that I will fall out of legal status if I take possession of my F1 OPT EAD card. Request your help in 

a) Verifying what my DSO has advised me.

b) Confirming that I am actually out of status, and

c) Any options that I may have at this stage.

 

12/19/2018: My form I-765 (for initial F1 OPT EAD) is received by the USCIS.

12/21/2018: MS program end date. (course completion date)

01/03/2019: I am notified that I have failed a course (in my last semester) and I will have to repeat it. Hence I register again for the spring 2019 semester and all my graduation paperwork is cancelled. This time I have only one course to graduate and duly fill in the Reduced Course Load form. 

01/04/2019: I discuss my EAD application with my DSO and am presented 2 options. First, I could cancel and withdraw it. Second, I may continue with the application and work 20 hrs (part time) till graduation in May, once my EAD is approved. I choose the second option since I have a job offer and I can start working part time once I have my EAD card. I notify my DSO of this choice and ask if there is any further paperwork required from my end to maintain my legal status. The DSO replies that I am fine. 

01/05/2019 - 03/15/2019: There is no activity on my application, I periodically check the USCIS case status and it only shows that "Case is Received". My DSO  asks for the I-797 Notice of Action and I supply her with it. Unknown to me, in this period, my DSO requests a "change of program end date" in the SEVIS system since I did not graduate in December and will be graduating in May instead. Apparently, my DSO's request was denied by SEVP on the grounds that my EAD application is in initial stage, hence they will not allow a change of program end date. I am NOT notified of any such discussion. 

03/15/2019: Since the 90 day period for I-765 processing is almost ending, I contact my DSO with a doubt about my EAD's start date. 

03/19/2019: DSO notifies me saying that SEVP has denied the request for change of program end date in SEVIS and hence I may fall out of status if I receive my EAD card. Unfortunately, I receive a notification from USCIS on the same day that my EAD is being produced and is ready to be shipped in the next couple of days. However, when I call the USCIS customer service rep, I am told that my case still reflects as "pending" in their system. On advise from my DSO, I send a letter to the USCIS requesting a cancellation / withdrawal of EAD application. 

Now, I am aware that EAD applications are almost never cancelled at this stage and it is next to impossible. I need some help in figuring out what is my legal status when my EAD card arrives since I am not a student according to SEVIS (as my program end date was not changed to May 2019) and if I get my EAD, I cannot show that I am a graduate. 

Could you please advise? Thank you very much for your time and consideration.

[care_candidate]

I think you DSO is giving you incomplete information. I remember when I went through F-1 to EAD, my DSO had very limited knowledge of what going on at that time. I attribute that to being in smaller university partially but foreign student should get complete information. I think failing in course should not make you out of status. Because your situation is slightly convoluted because of EAD application, you better do consultation with immigration attorney. They charge pretty high fee but you will get exact understanding of what you can do.