Should i apply for AOS to green card if i am leaving USA for studies in 60days>

[payxibka 10,044]

oh man

what should i do?

how do i find out when exactly did i go out of status?

how do i know if i over stay? does it happen when I leave the USA and they take the I94 card back to process?

Your H1b status ended sometime shortly after you terminated your employment

[canadian_wife 1,801]

Since H1B visas are employer specific, then when you lost your job you also lost your status. If you leave the US now, you may be subject to a ban.

Good luck.

[ValerieA 350]

You get a 3 year ban if you overstay by more than 180 days; you are still within that timeline if you lost your job in April.

[fabulous02 1]

When you lose a job and your employer holds your H1B, they generally put in a request to USCIS to terminate your visa. I believe USCIS waits about 30 days for a visa transfer or renewal request to come through before it terminates the visa (You can get a quick consult with an H1B lawyer to confirm or check online). This should help you calculate whether or not you overstayed and by how many days.

[haagen_dazs 0]

When you lose a job and your employer holds your H1B, they generally put in a request to USCIS to terminate your visa. I believe USCIS waits about 30 days for a visa transfer or renewal request to come through before it terminates the visa (You can get a quick consult with an H1B lawyer to confirm or check online). This should help you calculate whether or not you overstayed and by how many days.

someone said here 0-180 days over stay = 3 yr ban or is it >180days = 3 year ban?

i am confused

i kind of need some advice on what i should do now now now......

=(

i cannot leave the USA now and come back as a visitor visa because i have my ceremonial wedding in less than a month (we did the civil marriage last month). on top of that, we are both leaving the USA in 60 days to go to b-school (both of us). we might work overseas for a while and maybe come back to the USA later..

argh.

[Brother Hesekiel 2,235]

A denied entry and having a ban in place that makes one ineligible to receive a visa is a very different thing

You are correct. But you'll have to admit that this destinction is of academic nature when the O.P. is at the POE and the CBP officers sends him back home.

[Brother Hesekiel 2,235]

Since your overstay is less than 180 days, there's no automatic ban, so you should not be too worried about being denied at the Point of Entry (POE) because of this.

My question is: do you have a valid B2 in your pass right now? If not, it might not be easy to get one in your situation, as your wife is a US citizen, you lived in the US for years, and now you want to return for a "vacation."

If you do have a valid B2, yes, then you can leave the country and should be able to come back in a while. Now, however, that if you leave now with an expired H1 and come back just a few days (or a week or two) later with a B2, that's a red flag.

If you have not submitted your AOS yet, meaning they haven't gotten your money yet, it might be smarter not to file now, but instead to file a DCF about 6 months before you intend to return to the US. If you happen to be married for 2 years by then, you immediately get your (unrestricted) 10-year Green Card (GC). This way you don't have to file for Removal of Conditions (ROC). It would make life much easier for you.

Before we dig deeper, please answer whether or not you have a B2.

[haagen_dazs 0]

You are correct. But you'll have to admit that this destinction is of academic nature when the O.P. is at the POE and the CBP officers sends him back home.

this is what makes things more uncertain in life.

were you out of status from 1994 to 2006 (when you were married) ?? wow

[haagen_dazs 0]

Since your overstay is less than 180 days, there's no automatic ban, so you should not be too worried about being denied at the Point of Entry (POE) because of this.

My question is: do you have a valid B2 in your pass right now? If not, it might not be easy to get one in your situation, as your wife is a US citizen, you lived in the US for years, and now you want to return for a "vacation."

If you do have a valid B2, yes, then you can leave the country and should be able to come back in a while. Now, however, that if you leave now with an expired H1 and come back just a few days (or a week or two) later with a B2, that's a red flag.

If you have not submitted your AOS yet, meaning they haven't gotten your money yet, it might be smarter not to file now, but instead to file a DCF about 6 months before you intend to return to the US. If you happen to be married for 2 years by then, you immediately get your (unrestricted) 10-year Green Card (GC). This way you don't have to file for Removal of Conditions (ROC). It would make life much easier for you.

Before we dig deeper, please answer whether or not you have a B2.

So I spoke to a lawyer and have a couple of options laid out for me.

I guess I have to choose the best of the worse options.

Assuming my H1B was stopped in end April, I am now overstaying and will continue to do so till Aug 1.

That is about 3 months.

1)

If I want to be technically legal and safe, I can leave USA tomorrow. But that would mean I would forfeit my entire cermonial marriage which is in 3 weeks time. (Note : this is ceremonial ie church + cocktail + reception party but we are already civilly married).

This is quite ridiculous and most likely out of the question (not to mention i will be $40k poorer and leaving a bad taste with all my guests)

2)

I could leave USA and immediately come back into USA as a tourist (my country, Singapore does not need a visa to enter USA).

However the lawyer said this will raise red flags and there is high risk of denied entry.

So I don't think I can leave and come back for my wedding ceremony. right?

3)

I was told I could apply for the AOS and leave after 1+month but there may be issues when I have to come back for the interview later on right?

At the POE, I will have to explain myself as to why I am out?

Is it at this point that I have to apply for the AP to come back into the USA for the interview?

Are interview dates flexible or fixed?

After I get the temp. 2 year green card, I will still be out of the USA. Will I have problem coming back in later without the green card?

Can one fedex the green card to me while I am in another country so that I can use it to get back into USA later?

I am not sure

4)

Assuming after B school, we continue to work in ASIA,

I could file for a AOS outside of USA after 2 years of marriage. I understand that would be easier.

However I was caution that I had to plan ahead of time since the wait time can be long when filing outside of USA

Am I right on this?

5)

I was also told that if we were to work for a long time outside of USA ( 5 to 10 years) and decide to come back, I might not be able to file for a AOS through my wife because she will lose her domiciliary status. Then the ONLY way to come back with my wife is to get a H1B then (again!?!?) and come back to the USA.

Can people comment on the options?

Are there any other options?

[belinda63 2,981]

Comments

1. 3 months will not result in a ban which would need a waiver to overcome and override your tourist visa/VWP

2. Yes it would raised big giant red flags.

3. If you file for AOS and leave the country prior to obtaining AP you are considered to have abandoned your application. It is very risky to live outside the US for any extended length of time as an LPR since you are supposed to be a US RESIDENT, which means you reside in the US.It would be possible that upon re-entry the CPB would question why you, a new LPR, almost immediately left the country for months. If you remain out for more than 6 months it is a very good idea to apply for a re-entry permit.

4. Your spouse can petition for a CR-1 or IR-1 visa when you are ready to return to the US. Not too long of a wait, average around 6-8 months so if you plan ahead this would be a good thing.

5. Your wife must have a domicile in the US to file for a spousal visa. This could be an apartment, her parent's home, etc. There should be no problem with her establishing one prior to filing the petition for the application if you plan ahead.

To summarize.

Stay here and enjoy your party, leave prior to accumulating 180 days overstay, about 10 months prior to returning to the US have your wife establish a domicile and file a petition for a spousal visa.

[haagen_dazs 0]

thanks so much

in hind sigh, i wonder if i could have done things differently about 1+ mth ago

but at that time, i did not know if i was going to b school

would applying for AOS 1 mth ago make my situation now more complicated?

should i have applied for the special tourist visa (B??) then?

[dracoasa 0]

thanks so much

in hind sigh, i wonder if i could have done things differently about 1+ mth ago

but at that time, i did not know if i was going to b school

would applying for AOS 1 mth ago make my situation now more complicated?

should i have applied for the special tourist visa (B??) then?

You also have an other option; I think is the best

While you are in Asia with your spouse and she lives/studies there you might be eligible for Direct Consular Filing; that is the same procedure as AOS but the spouses are outside US

(see this page) http://www.visajourney.com/content/dcf

check also the forum section for Direct Consular Filing http://www.visajourney.com/forums/forum/82-direct-consular-filing-dcf-general-discussion/ )

Good Luck and happy marriage