Can wife stay while 485 and 130 are pending, even if student visa is expired?

[calworthington 0]

Hello all and thanks in advance for any help, advice or information you can provide....

Here is some background. My fiance tried out Art school and it wasn't anything like what she expected it to be so she plans to quit school at the end of Feb. The school told her that her student Visa will expire 15 days from the time she quits school so I'm guessing around March 15. We have plans to marry on Feb 26 and then send forms 485 and 130 once I receive the marriage license which with expedited shipping will be around 10 working days from what the county clerk told me. We contacted an immigration officer and she told us to make sure we are married before she is out of status, but make sure to leave for Canada before her student visa expires, then return to the united states and just tell the person at POE that she plans to stay with her husband while her paperwork is processing. The immigration officer told me that there shouldn't be a problem as long as there is no overstaying on an expired visa...

My questions are:

Is there any way that my wife can she stay while the 485 and 130 are pending?

If we get married feb 26, her student visa expires around march 15, but the marriage certificate doesn't come until after march 15 and we can't send the forms until after her student visa expires, can she still file her status as tourist or will she be classified as overstaying?

Should she return to Canada where she has a newly issued permanent resident card, then return here after a month or two on her tourist visa so that there is no danger of overstaying? Is there any danger of Canada not allowing her to enter the U.S?

Please advise...

[EmVee 3]

If she leaves the US she'll have to apply for CR-1 or K-3 from outside the country. As far as I'm aware, once you decide to apply for AOS while she's IN the United States, she can't leave during that entire process. So basically, it sounds like either you have to apply and she waits it out in the US (out of status??) or she goes to Canada and you file for CR-1. I'm relatively sure she can't file for CR-1 and then just come back to the US to wait for approval, she has to stay in Canada in order to complete the process there. Others on VJ will know more about that than I do, however.

[Darnell 8,478]

from what I've read -

any 'out of status' time is forgiven , when transiting from a student visa into a spousal visa , if the alien remains in the usa all the time (ie - don't leave until green card in hand)

so she's PI citizen, with almost a Canadien PR status, today, in the USA , on a student visa, right?

If she stays in the usa after her student status expires, you two marry soonish, and file for AOS soonish, then I THINK she'll be ok (again, as long as she not leave USA). I could be dead wrong, of course.

Break out a calendar, mock up some timelines for her AOS case, ya?

Good Luck !

read this guide -> http://www.visajourney.com/forums/index.ph...page=i130guide2

Edited February 22, 2010 by Darnell

[calworthington 0]

from what I've read -

any 'out of status' time is forgiven , when transiting from a student visa into a spousal visa , if the alien remains in the usa all the time (ie - don't leave until green card in hand)

so she's PI citizen, with almost a Canadien PR status, today, in the USA , on a student visa, right?

If she stays in the usa after her student status expires, you two marry soonish, and file for AOS soonish, then I THINK she'll be ok (again, as long as she not leave USA). I could be dead wrong, of course.

Break out a calendar, mock up some timelines for her AOS case, ya?

Good Luck !

read this guide -> http://www.visajourney.com/forums/index.ph...page=i130guide2

----------------------------------------------- --------------- ----------------- --------------- -------------------

Hello and thanks for the response!

Yes shes a PI citizen, a Permanent Resident of Canada, here in the US on a student Visa, and will Marry me on feb 26... Alot to process!

Yeah we are worried that it will look bad if her student Visa ends in mid March and she stays here instead of going back to Canada...But by then we will be married and will be just waiting for the marriage certificate to send off the AOS forms. I think basically I'm wonder whether or not it is allowed for her to stay here since she will be married to me, but her student Visa is expired.

I will check out that link right now...

[Darnell 8,478]

i'll repeat myself.

the 'out of status' time that she will incur, will be forgiven, USUALLY, with nothing more to fill out on her behalf.

But - she'll be out of status between:

student visa expiration date to NOA-1 date from the AOS package.

Once the NOA-1 is in hand, her status changes to 'AOS Pending'

If you go this route - DO NOT LEAVE THE USA until Green Card in hand.

Seriously - make a calendar. use paper and pencil.

[EmVee 3]

Assuming you are both very organized and apply for AOS as soon as possible, she won't be out of status for that long... once she gets the NOA1 she'll be pending.

[calworthington 0]

i'll repeat myself.

the 'out of status' time that she will incur, will be forgiven, USUALLY, with nothing more to fill out on her behalf.

But - she'll be out of status between:

student visa expiration date to NOA-1 date from the AOS package.

Once the NOA-1 is in hand, her status changes to 'AOS Pending'

If you go this route - DO NOT LEAVE THE USA until Green Card in hand.

Seriously - make a calendar. use paper and pencil.

------------------ --------------- --------------- -------------------

Ok its becoming a bit clearer...

My question is, should we take the risk that her out of status time will be forgiven, or should she go to Canada and return back here using her Canadian permanent resident card and be here as a tourist while the paperwork is pending? Its alot of traveling, but is that a viable option that way there is no trouble with being out of status?

[skidivawannabe 2]

------------------ --------------- --------------- -------------------

Ok its becoming a bit clearer...

My question is, should we take the risk that her out of status time will be forgiven, or should she go to Canada and return back here using her Canadian permanent resident card and be here as a tourist while the paperwork is pending? Its alot of traveling, but is that a viable option that way there is no trouble with being out of status?

She will become out of status on March 15.

You will get married on Feb 26.

Even if you file after March 15, I think your wife is pretty safe to stay in the U.S. However, she can not leave the U.S for the next 6 months or so.

[EmVee 3]

------------------ --------------- --------------- -------------------

Ok its becoming a bit clearer...

My question is, should we take the risk that her out of status time will be forgiven, or should she go to Canada and return back here using her Canadian permanent resident card and be here as a tourist while the paperwork is pending? Its alot of traveling, but is that a viable option that way there is no trouble with being out of status?

She cannot file for AOS and then go back to Canada. She can EITHER;

- Stay in the US after marrying, file for AOS and accept that she will be out of status after her current visa expires until you submit the paperwork.

OR

- Go back to Canada after marrying, file for CR-1 and wait it out IN CANADA because she needs to process the CR-1 from there.

She can't file for AOS, and then zip back and forth between the US and Canada. While either visa processes, she needs to remain in one place. Once you submit your paperwork for AOS, she CANNOT LEAVE the United States or it will no longer be valid. And it's against the law for her to go back to Canada, then come back as a tourist planning to get married and file.

So basically, if I were in your position, I'd just take the chance and get married and file the paperwork ASAP from the US. Chances are they won't care if she's a week or two out of status - though that's NOT guaranteed.

[Lili 3]

Coming here on a tourist with intent to marry is frowned upon. A tourist visa is not dual intent. Read up on it.

Edited February 23, 2010 by Lili

[EmVee 3]

Coming here on a tourist with intent to marry is frowned upon. A tourist visa is not dual intent. Read up on it.

Assuming that was in response to what I posted; I am aware of that. I came here on a tourist visa.

I was merely clarifying for the OP that his GF can't go back to Canada and re-enter the US on a tourist visa in order to file for AOS and not be out of status.

[Kathryn41 3,205]

Lili - the OP's fiancee did not come to the US on a visitor's visa. She is already here as on a student visa and did not enter the country either as a tourist or with the intent to get married. She is allowed to file from within the US to adjust her status from student to permanent resident based upon her marriage to a US citizen since she legally entered the country without the intent of getting married. As well, it is not illegal to come to the US as a tourist with the intent to marry. That is perfectly legal. What is illegal is to come to the US with the intent to marry AND to stay in the US to adjust status. Many people come to the US on visitor visas intending to get married, get married, and then leave to complete the immigration process. Many also come to the US on visitor visas not intending to get married, do get married, and legally are allowed to remain in the US to complete the immigration process.

Calworthington, as others above have explained, if you chose to file for AOS with your wife in the US on her student visa she will have to remain in the US until she receives either her green card or the Advance Parole travel document. The immigration officer you spoke too gave you bad advice. (Was that from calling the 1-800 Immigration Hotline, btw? If so, there is a good reason they are called the "Misinformation line"). If she leaves after you have filed for the AOS, it cancels out the AOS application and you would have to start the immigration process all over with a CR-1 and her outside of the US. Since she entered legally and without the intent of getting married when she entered, it is perfectly legal for her to remain in the US while she waits for her green card approval. If there is a time between when her current student status expires and her AOS application is accepted (when she will once again have legal status as an 'AOS applicant'), it WILL be forgiven when the green card is approved. I will try and find where that is stated officially and post it here, but you do not need to worry about the short time she is out of status under your current circumstances. File for the AOS as soon as you can, but it won't be a problem if there is a short period where she is out of status.

Edited February 23, 2010 by Kathryn41

[JERIII 8]

Hello all and thanks in advance for any help, advice or information you can provide....

...

My questions are:

Is there any way that my wife can she stay while the 485 and 130 are pending?

If we get married feb 26, her student visa expires around march 15, but the marriage certificate doesn't come until after march 15 and we can't send the forms until after her student visa expires, can she still file her status as tourist or will she be classified as overstaying?

Should she return to Canada where she has a newly issued permanent resident card, then return here after a month or two on her tourist visa so that there is no danger of overstaying? Is there any danger of Canada not allowing her to enter the U.S?

Please advise...

As has been said, she must stay in the United States. But, if she is out of status for less than 180 days (which she will be), she can get an advanced parole (I-131, file with the I-130 and I-485, no fee) and after she receives the AP she can travel outside of the country. The overstay will be forgiven when AOS takes place, unless there is something else drastically wrong.

Don't worry, thousands and thousands of people adjust from overstays.

She should not go back to Canada at this point.

Edited February 23, 2010 by JERIII

[Val Marty 1]

If you get married in court you can get a certified copy of your marriage certificate immediately - you pay $5 or $10 per copy, can't remember how much exactly. Just make sure you do it before their closing time. That's what we did (not to get the copy faster but because we couldn't afford a wedding, neither I wanted one without my family here).

[calworthington 0]

If you get married in court you can get a certified copy of your marriage certificate immediately - you pay $5 or $10 per copy, can't remember how much exactly. Just make sure you do it before their closing time. That's what we did (not to get the copy faster but because we couldn't afford a wedding, neither I wanted one without my family here).

Thanks for all the answers everyone. I just got got the official copies of our marriage license and gonna mail off the i-485, i-130, and affidavit of support forms this week!