Son LPR and in College wants to marry a foreign (EU) student he met in college. Any advice?

[AT20000 33]

Typical story: My LPR (10 year GC) 26 years old son is still a student (for quite a few years as he is finishing Pre-Med School and wants to become a surgeon) and he met a foreign (EU) student who is in the same university. They are now dating for 2 years and they would like to get married. She holds an EU passport, and she will be done with her degree (hence on her way back home) in about 12 to 18 months.

He could:

1. Apply for citizenship (he is on US soil long enough), she could go back home and they could apply for a K1 visa, then get married, but this would delay their wedding by a minimum of 18-24 months. Hence her ability to work after her degree (added to the time for her to adjust her status and get her employment authorization).
2. Marry her here (they both are here legally) without applying for citizenship first and file to adjust her status here. They would be married earlier but not sure she could adjust her status and work before 18-24 months either.

They are at an age where it is normal to get married, they have been together for a while now, and I can definitely vouch for them financially (no need to warn me about the risks, the whole story is as clear as clear can be, she is a good girl and I know her family). What I am seeking here is the opinion of someone who has experience in one of the 2 options: 

 

What would be the fastest/easiest/safest route? I would appreciate some (substantiated) opinion on that. 

 

Have you been in one of the 2 options? What is your experience? How fast did it go? Where do I find the accurate timeframe for either option? 

 

We are in Sacramento CA.

 

Thanks VJ community!

[Coco8 1,039]

 

First, you should find out if she has an F1. If she has an F1, she has 1 year of OPT that allows her to work after graduation. That would add 12 months to the timeline. 

 

If he applies for citizenship that takes 6 months. I don't see the issue with applying for citizenship right now. After that, they can get married and file, if his citizenship is approved he should let USCIS know and their application for her is "upgraded". Basically, my advice would be to do everything at the same time. 

 

Maybe other people have more specific information on the timelines. 

 

But do find out if she has OPT or if he could delay her graduation by a semester (sometimes you can take more classes or do an extra minor/major and they can have more time in case they need it).

Edited November 4, 2017 by Coco8

[geowrian 22,335]

1 hour ago, AT20000 said:

Apply for citizenship (he is on US soil long enough), she could go back home and they could apply for a K1 visa, then get married, but this would delay their wedding by a minimum of 18-24 months. Hence her ability to work after her degree (added to the time for her to adjust her status and get her employment authorization).

That timeline sounds fairly accurate, although nothing is guaranteed with immigration.

 

Quote

Marry her here (they both are here legally) without applying for citizenship first and file to adjust her status here. They would be married earlier but not sure she could adjust her status and work before 18-24 months either.

In order for the spouse of an LPR to adjust status in the US, her Priority Date (PD) would need to be current. If your son married and filed the I-130 for her right now, it would still be ~18 months (estimate only!) before the PD would be current.

She must maintain legal status within the US the entire time. If that isn't possible, then she will need to return abroad and can interview for a F2A family preference visa to come to the US (after the PD is current still).

 

If he naturalizes after filing the I-130, he can upgrade the petition and it will make the PD current immediately, and she can file for AOS at that time. EAD + AP will take about 4 months or so after filing for AOS (to work and travel abroad while the case is pending).

 

Or he can naturalize and then file the I-130 + I-485 concurrently. She can stay in the US while the case is processing, and file for an EAD + AP just like above.

 

Personally, the naturalization route, if he wants to go that way, would be optimal IMHO.

Edited November 4, 2017 by geowrian

[CEE53147 559]

She should find an employer to sponsor H-1B after OPT.  That way she will remain legally while in marriage processing delay no matter whether he is LPR or citizen. She needs to worry about leaving country while on OPT after marriage since that shows immigrant intent.

 

US immigration system is so nutty that a F-1 (or H-1B, L-1, or J-1) student can bring a new spouse to US while a new spouse of a US citizen or LPR has to wait.

 

 

[AT20000 33]

Coco8 and Geowrian,

Great thanks for your answers. 

Here are the things I am afraid of if they run both the naturalization and the I-130 at the same time:

1. Naturalization process and/or I-130 could take longer than her F1 visa (The situation is pretty straightforward: they are both straight A students who want to get married, nobody has the slightest criminal history, not even a ticket; could the I-130 possibly last more than 18 months?)
2. Let's say they get married and her F1 and OPT runs out, is she supposed to go back and wait there?
3. IF he gets his citizenship before the LPR I-130 goes through, is an upgrade possible without restarting the clock? Or does it start the process all over again (and she would maybe have to go back, wait there etc)?

What are your thoughts? Where can I find this info? Is there a step by step guide on here?

 

[Coco8 1,039]

2 hours ago, AT20000 said:

IF he gets his citizenship before the LPR I-130 goes through, is an upgrade possible without restarting the clock? Or does it start the process all over again (and she would maybe have to go back, wait there etc)

The clock does not restart. The same application continues and it is "upgraded" meaning, it will take less time and she will have other benefits. For instance, she will be able to wait in the US even if her F1 expires without any time of penalty (this would not be the case if he is not a citizen).

 

That is why he should apply for citizenship today regardless of which plan you'd like to go with. 

Edited November 7, 2017 by Coco8

[geowrian 22,335]

10 minutes ago, AT20000 said:

1. Naturalization process and/or I-130 could take longer than her F1 visa (The situation is pretty straightforward: they are both straight A students who want to get married, nobody has the slightest criminal history, not even a ticket; could the I-130 possibly last more than 18 months?)
2. Let's say they get married and her F1 and OPT runs out, is she supposed to go back and wait there?
3. IF he gets his citizenship before the LPR I-130 goes through, is an upgrade possible without restarting the clock? Or does it start the process all over again (and she would maybe have to go back, wait there etc)?

What are your thoughts? Where can I find this info? Is there a step by step guide on here?

1. The I-130 may or may not depending on when she graduates, but what really matters is when she can file for AOS. This is the chart to use for that: https://www.uscis.gov/visabulletininfo. F2A is currently at about a year behind for filing, and 18 months for becoming current.
   1. Naturalization, if the applicant qualifies, is usually about a 6-12 month process.
2. Once she no longer has a legal status, she must return home to wait out the process. Overstay is not ignored for the spouse of an LPR.
3. Yes. If she wants to remain in the US and do AOS, she can file the I-485 at any time. Send a copy of either the NOA1 (if the I-130 is not approved yet) or NOA2 (if I-130 was approved) with the I-485 packet. Both cases should include proof of being a USC now as well (copy of the naturalization certificate or US passport).

[Holt 73]

Naturalization in Sacramento Field Office takes more than 240 days, which is more than 7 months. However, things could get better or worse. 

As Geowrian says, the most important thing is in case she no longer has a legal status, it would be forgiven if your son is becoming an USC. 

So I think, your son needs to become a USC is a first thing to do. 

Thanks Geowrian for excellent explanation !