Permanent Resident Marrying an F1 Student

[apuleva 0]

Hey Guys!

It is safe to say that I have spent at least a couple of hours in this forum but I don't seem to find exactly what I need, so here it is:

I got married to a US Citizen in 2013, got my green card a couple of months later...marriage didn't work out and we separated 2 years after. At the end of August last year I filed for my I-751 Remove of Condition after my divorce was finalized. Did that with a lawyer and documents were very strong, my ex husband was supportive and helped me as much as he could. I am expecting my approval to come in the mail any day now (fingers crossed).

On the other hand my boyfriend entered the country on a B2 visa about 2 years ago, filed for a 6 month extension and later a student visa, his F1 was approved in March. His initial intend wasn't to stay in the country but now we have decided that we want to get married and stay together.

Has anybody here been through the process? I know that currently they are two filing dates, but I am not very clear to which one is for what. What we really care about is not so much the green card but the permit for work and travel. How long until he can get that? Also what would happen if we file the I-130 and he stops going to school? Do you think that would have a bad impact on the application? Any advice/help will be much appreciated! Thank you!

[p-ana 933]

Since you're not a citizen yet, your boyfriend better be careful with his status because him overstaying and being here illegally can't be forgiven.

As far as I know it's not possible to adjust his status since there's a waiting period for a visa availability for lpr's spouses.

[Hypnos 6,576]

As stated, he cannot file for AoS since the priority date of his I-130 won't be current.

[Anitafeliz 1,133]

His student visa is contigent on him going to school. If he quits schools he will loose his visa. If you were a USC then you could adjust like poster prior stated and he would be excused and over stay but as for now if he wants to quit school hell need to go home to avoid overstaying you can apply for him as a LPR when you are allowed to and wait in his country for an interview.

Edited June 14, 2016 by Anitafeliz

[Hypnos 6,576]

In addition, you are ineligible to file an I-130 for a new spouse if you gained LPR status from a previous spouse within the past five years.

There is an exception if you can show your new marriage is bona fide "by clear and convincing evidence", but that's a high bar for most people.

You probably won't be able to file for a new spouse until 2018.

Edited June 14, 2016 by Hypnos

[apuleva 0]

@Hypnos

How was my green card approved in a first place if I wasn't in a bona fide marriage? I do have plenty of evidence that I have already provided the USCIS with and can do that again. Thanks for the reply.

I am really looking for someone who has already been through this process. Thank you guys!

[arken 4,197]

First of all, typically you have to wait for 5 years from the time you got your GC through marriage to be able to sponsor your new spouse unless you provide a convincing reason that previous marriage wasn't solely for the immigration. While you were able to get ROC with those convincing reasons, USCIS will be looking for even more stronger evidences this time since they have to give a GC to your new spouse. ROC was about you only but now it's about you and your new spouse. So the level of evidences you submitted during ROC might not be sufficient this time.

Let's say you are allowed to petition him due to your convincing reasons of previous bonafide marriage, you can only file i-130 for now and your new spouse will have to wait almost 1.5 years before he can apply for for AOS and work permit and travel permit. He has to maintain legal status during that period. If he is still in legal status in US during that time he can file for AOS/EAD/AP, if he goes back to his country, he has to go through NVC/Consular Process.

Edited June 14, 2016 by arken

[apuleva 0]

@arken

Thanks so much for the reply. Let me see if I understand this well. So lets say that all my documents are rock solid, previous and current marriages - lots of financial and all sorts of documents. Hypothetically we get married and file the I-130 tomorrow, on the visa bulletin for July 2016 filing dates priority is OCT 2015...if we the date is consistently moving that is about 10 months. Doesn't that mean that again, if the date is consistently moving, my husband that will be able to apply for AOS in 10 months? Sorry if this is confusing just trying to clear it in my head. Thank you very much for the help!

[belinda63 2,981]

A spouse of an LPR does not have any overstay forgive. If your spouse is in the US and in legal status at the time the priority date becomes current he can file to AOS. if he is in the US and not in legal status he cannot.

[arken 4,197]

The filing date table is strictly for NVC/consular processing. For AOS, USCIS might use any of those two tables and is using final action table with cut off date of 15NOV2014 for July 2016. So it's wait of 1.5 year or more unless USCIS starts using table of filing dates in future months.

See https://www.uscis.gov/visabulletininfo

Edited June 14, 2016 by arken

[EM_Vandaveer 2,369]

@Hypnos

How was my green card approved in a first place if I wasn't in a bona fide marriage? I do have plenty of evidence that I have already provided the USCIS with and can do that again. Thanks for the reply.

I am really looking for someone who has already been through this process. Thank you guys!

From the instructions for I-130

"Who may not file Form I-130?

A spouse, if you gained lawful permanent resident status by virtue of a prior marriage to a U. S. citizen or lawful permanent resident, unless:

A. A period of five years has elapsed since you became a lawful permanent resident; or

B. You can establish by clear and convincing evidence that the prior marriage through which you gained your immigrant status was not entered into for the purpose of evading any provision of the immigration laws; or

C. Your prior marriage through which you gained your immigrant status was terminated by the death of your former spouse."

Clear and convincing evidence is a higher standard that's what used for I-751. For example this is the same standard that's used if the foreign spouse is in removal proceedings and the marriage took place after the spouse was placed in removal proceedings.

I'm not saying you can't satisfy this higher standard of evidence, just that it's a different standard and USCIS takes that seriously.

The reason for this is a familiar pattern of fraud:

Either a married foreign couple will divorce or they are not married yet just girlfriend & boyfriend. One of the marries a USC, gets their GC, divorces the USC & brings their "real" spouse.

I am not saying that is the case here, I am saying that is the reason for a higher standard of evidence in a case like this.

Edited June 14, 2016 by EM_Vandaveer

[apuleva 0]

@ EM_Vandaveer

I totally understand that. But when it comes down to documents and all that, who can really provide more paper work than they have already done twice before. When you file for the AOS and the ROC I think anybody would try to sent every single document that can proof their case, down to the silliest photograph. Do you know what I mean?

Thanks so much!

[Anitafeliz 1,133]

the question is.......

Can you prove your previous marriage was not to come to the us for a gc...if you can by all means marry and file...

What ever you both do your fiancée cannot quit school because he will be not in compliance with his student visa.

And if he is out of status he will not be forgiven the overstay YOU are not a USC.

If his visa expires before he can adjust he has to go to his country and go through the embassy for his visa.

Edited June 14, 2016 by Anitafeliz

[apuleva 0]

@Anitafeliz

I believe that the F1 status does not expire as long as you continue your studies. And yes, I think that the fact that I have already gotten my previous documents approved means that I can definitely show solid proof that my marriage was bona fide. Thanks for your help.

[Anitafeliz 1,133]

Hey Guys!

It is safe to say that I have spent at least a couple of hours in this forum but I don't seem to find exactly what I need, so here it is:

I got married to a US Citizen in 2013, got my green card a couple of months later...marriage didn't work out and we separated 2 years after. At the end of August last year I filed for my I-751 Remove of Condition after my divorce was finalized. Did that with a lawyer and documents were very strong, my ex husband was supportive and helped me as much as he could. I am expecting my approval to come in the mail any day now (fingers crossed).

On the other hand my boyfriend entered the country on a B2 visa about 2 years ago, filed for a 6 month extension and later a student visa, his F1 was approved in March. His initial intend wasn't to stay in the country but now we have decided that we want to get married and stay together.

Has anybody here been through the process? I know that currently they are two filing dates, but I am not very clear to which one is for what. What we really care about is not so much the green card but the permit for work and travel. How long until he can get that? Also what would happen if we file the I-130 and he stops going to school? Do you think that would have a bad impact on the application? Any advice/help will be much appreciated! Thank you!

This is why I said the him leaving school you asked & I belive 3 people told you roc evidence is not the same as proving you did not use 1st hubby for a GC now that you intend to help 2nd hubby... Edited June 14, 2016 by Anitafeliz