Posted by: bakwaas_kura August 27, 2015
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Agree with you MimroRaMero. After reading through some threads here, doing some research, consulting ISO advisor, I've decided to mail the application for my wife.
I did get an update from my DSO though. Here are the questions I asked and her answers:
1. Based on my research, what I learned was that TPS with EAD allows anyone to work anywhere regardless of their visa status while maintaining their current status. For instance, a F-1 student who gets TPS with EAD isn't restricted to 20 hours/week on-campus job and can work anywhere, any number of hours as long as they continue to go to school and meet the credit hour requirements and this won't void their F-1 status. When TPS expires, the student will go back to being a regular F-1 student i.e. has to follow the 20 hr/week on-campus employment restriction. Doesn't the same apply to F-2 as well i.e. work anywhere, any number of hours you want with TPS EAD and when TPS expires, you'll go back to being a F-2 given that the F-1 student is still maintaining their status? Or am I wrong/misinformed about this?
Ans: This is incorrect. You can apply for and obtain TPS and the accompanying EAD while maintaining your F-1/2 status. However, in order to work outside of what is permitted by your immigration status (for you and your wife- F-1 and F-2), you must show that you are incurring severe economic hardship and you should work with an immigration attorney on this matter and make sure not to violate the terms of your nonimmigrant status. If your wife chooses to work using the EAD card based on TPS, she will be in violation of her F-2 status, as F-2’s are not permitted to obtain employment and thus she would not be maintaining her status—which is why we would need to end her F-2 upon employment. If you (the F-1) were wanting to seek employment off-campus, you would need to work with an immigration attorney to show severe economic hardship as to why you would need to do so (however, with your graduate stipend, it’s almost certain that you will not qualify for severe economic hardship). The following information is from a USCIS FAQ notice (August 12, 2015) and may be helpful:
Can someone with a non-immigrant status (e.g. F-1, B-2, etc.) apply for TPS? If so, will having or using a TPS-related EAD affect his or her other status?
Yes, a person with F-1, B-2, or any other nonimmigrant status may apply for and receive TPS. The individual can continue to hold both statuses, as long as he or she remains eligible for both. For example, if an F-1 (student) applies for and obtains TPS, but he or she continues to abide by all of the F-1 eligibility requirements, he/she can continue to maintain F-1 status and simultaneously hold TPS. Any individual who applies for and is granted TPS must continue to comply with the separate eligibility requirements of all other statuses (e.g., F-1, H-1B) that he or she seeks to maintain.
It is up to the individual to know and understand the requirements of all statuses he/she holds or is seeking to obtain and/or maintain. Receiving TPS or a TPS-related EAD does not alter any rules limiting employment for certain nonimmigrants, such as F-1 students or B-2 visitors. Before someone holding both nonimmigrant status and TPS chooses to work using a TPS-related EAD, he or she should carefully consider whether that employment could violate the terms of the nonimmigrant status, potentially resulting in violation of the nonimmigrant status. F-1 students who are considering working on a TPS-related EAD may want to talk with their Designated School Official (DSO) and/or an immigration attorney to discuss how employment could affect their F-1 status. We note that students who are experiencing severe economic hardship as a result of unforeseen circumstances may follow the usual process to request off-campus employment authorization due to the hardship by filing an I-765, Application for Employment Authorization. Recognizing the effects of the earthquakes in Nepal, USCIS has announced that it will work to expedite the adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students from Nepal experiencing severe economic hardship.
2. I've read that a person can adjust their status while they are on TPS. Given that my wife gets TPS with EAD, starts training and working at an IT company, can her status be adjusted to H-1B (through employer) or F-1 (in case she doesn't find an employer willing to sponsor an H-1B and joins a masters program instead) without having to travel outside the U.S. before TPS expires?
Ans: She should be able to change her status to H-1B from TPS as long as she is not out of status when she does so. I highly recommend consulting with an immigration attorney on this matter. Because TPS is such a tricky matter, I do recommend that you consult with an immigration attorney before making any decisions. If you need a list of attorneys (it’s not extensive, nor exclusive and you are more than welcome to find one on your own), please let me know and I will send you a list.
So there are risks and benefits...just have to be careful