Apply for F-1 visa while I-130 pending?

[prakriti 0]

We are about to direct consular file our I-130 with the hope of getting a CR-1, but haven't filed yet. We're currently living in Toronto. She graduated university a few years ago, but wants to go back and get a second undergrad degree in a different major (to get into grad school). She would very much like to do this without first waiting for the I-130 to be approved. I own a home in NYC that is currently empty, and if her F-1 is approved we would both just move into it. If she can't get an F-1, I may still have to move back to NY and we would have to just visit on weekends for the next year while her I-130 is in the pipeline, which would be very expensive and suck a great deal.

Does anyone know the likelihood her F-1 could be approved with the I-130 pending? I've heard "no" on the grounds of the I-130 proving intent to immigrate and the F-1 being a nonimmigrant visa, but I don't buy that it's this cut and dried. Does anyone have a realistic answer?

Thanks

Adam

[prakriti 0]

Another thing we were considering... get the F-1 first and then direct consular file the I-130 after the F-1 is approved but before moving?

[LotofPatience 65]

Another thing we were considering... get the F-1 first and then direct consular file the I-130 after the F-1 is approved but before moving?

You may try this option.

Loto

[prakriti 0]

Any possibility the I-130 would be jeopardized if it's filed so soon after approval of the F-1, on the grounds that we fraudulently filed the F-1 while intending to immigrate? We could always wait a year or something with her going to school, and then file the I-130 and AOS. If we direct consular file the I-130 we wouldn't have to file an AOS, not sure if that simplifies the interview process. Waiting 2+ yrs to apply I-130 from within the US without AOS would be a bit much.

Edited September 2, 2010 by prakriti

[LotofPatience 65]

Any possibility the I-130 would be jeopardized if it's filed so soon after approval of the F-1, on the grounds that we fraudulently filed the F-1 while intending to immigrate? We could always wait a year or something with her going to school, and then file the I-130 and AOS. If we direct consular file the I-130 we wouldn't have to file an AOS, not sure if that simplifies the interview process. Waiting 2+ yrs to apply I-130 from within the US without AOS would be a bit much.

If that's the case, don't proceed with F1.

Go for DCF. It should be faster than filing I-130 with USCIS.

Loto

[canadian_wife 1,802]

As someone who has been on an F-1 visa, I can tell you that you must prove you do not have immigrant intent, something you do not obviously have. You are married to a USC and have every intention of immigrating.

In all honesty, apply for the Cr-1 visa via DCF. It will be quicker and cheaper than an F-1 (when you calculate out of state tuition costs etc) Plus, you won't have to get around the pesky "prove to me you will return to Canada after being issued this non-immigrant visa" question which WILL come up

good luck

[prakriti 0]

Agreed, but there is a possibility I may be offered a job in NY and if that happens I will want to take it. There is *big money* involved here, hundreds of thousands of dollars. I am willing to screw around and try anything conceivable to shorten this process and I've had limited help from the attorneys I've been dealing with. I can fly back to Toronto every weekend, but that's a shitty arrangement. I realize other people are in the same boat but that doesn't mean I intend to lie down in it.

Edited September 2, 2010 by prakriti

[LotofPatience 65]

Agreed, but there is a possibility I may be offered a job in NY and if that happens I will want to take it. There is *big money* involved here, hundreds of thousands of dollars. I am willing to screw around and try anything conceivable to shorten this process and I've had limited help from the attorneys I've been dealing with. I can fly back to Toronto every weekend, but that's a shitty arrangement. I realize other people are in the same boat but that doesn't mean I intend to lie down in it.

prakriti, PM me if you need some advice from me.

Loto

[canadian_wife 1,802]

File DCF before you take your job and you'll be fine. IT will even help your DCF case - re-establishing domicile

DCF is the quickest way possible.

Loto - what advice can you suggest privately that you cannot do publically? Your advice can help others

[prakriti 0]

I got advice from an attorney. The advice follows:

There is a difference between preconceived intent to immigrate and fraud/misrepresentation.

If you misrepresent a fact to the immigration agency, then there will be negative consequences. Anything that is said or written to an immigration official will be known by all subsequent immigration officials.

Preconceived intent refers to entering the United States with the intent of gaining permanent residency immediately (without leaving the country). Future intent to immigrate is not preconceived intent.

Generally, preconceived intent is a problem. However, since your wife is an immediate relative, there is case law which states that immediate relatives should not be denied adjustment of status based solely on preconceived intent.

So, this means, if she obtains the f-1 status (making sure to indicate that she was married to a U.S. citizen), and then enters the United States on the F-1, you two will face a choice. You can either file the I-130 by itself (this would require her to travel back to Canada for the interview), or she can file the I-130 and I-485 together (commonly referred to as Adjustment of Status). If she does that, you two will have an interview in the United States at the immigration office closest to your residence (there is one in New York City). By filing for adjustment of status, she will also be able to obtain work authorization about 90 days later.

In deciding whether to file the I-130 alone, or the I-130 with the I-485, it comes down to the question of whether you made any indication that stated she planned to return to Canada. For example, if at the border (or the consulate) the official asks if she plans to return to Canada, she will either have to say yes or no. If she says yes, and then she files the I-130/I-485, she could be accused of making a misrepresentation to an immigration official. If she says yes, and then files the I-130, there will be no misrepresentation or preconceived intent because she is leaving the country before she is granted permanent residency.

She should always truthfully answer a question from an immigration officer (or on an immigration form). She should also make sure that she does not hide her marriage to a US citizen.

If the topic of returning to Canada never comes up, then she made no misrepresentation, and can file the I-130/I-485 because there was no misrepresentation. Case law indicates that preconceived intent should not the sole reason for the denial of an adjustment of status.

Filing the I-130 would be the safest approach. However, it should be possible to Adjust Status as long as you two have made no misrepresentations.

[LotofPatience 65]

I got advice from an attorney. The advice follows:

There is a difference between preconceived intent to immigrate and fraud/misrepresentation.

If you misrepresent a fact to the immigration agency, then there will be negative consequences. Anything that is said or written to an immigration official will be known by all subsequent immigration officials.

Preconceived intent refers to entering the United States with the intent of gaining permanent residency immediately (without leaving the country). Future intent to immigrate is not preconceived intent.

Generally, preconceived intent is a problem. However, since your wife is an immediate relative, there is case law which states that immediate relatives should not be denied adjustment of status based solely on preconceived intent.

So, this means, if she obtains the f-1 status (making sure to indicate that she was married to a U.S. citizen), and then enters the United States on the F-1, you two will face a choice. You can either file the I-130 by itself (this would require her to travel back to Canada for the interview), or she can file the I-130 and I-485 together (commonly referred to as Adjustment of Status). If she does that, you two will have an interview in the United States at the immigration office closest to your residence (there is one in New York City). By filing for adjustment of status, she will also be able to obtain work authorization about 90 days later.

In deciding whether to file the I-130 alone, or the I-130 with the I-485, it comes down to the question of whether you made any indication that stated she planned to return to Canada. For example, if at the border (or the consulate) the official asks if she plans to return to Canada, she will either have to say yes or no. If she says yes, and then she files the I-130/I-485, she could be accused of making a misrepresentation to an immigration official. If she says yes, and then files the I-130, there will be no misrepresentation or preconceived intent because she is leaving the country before she is granted permanent residency.

She should always truthfully answer a question from an immigration officer (or on an immigration form). She should also make sure that she does not hide her marriage to a US citizen.

If the topic of returning to Canada never comes up, then she made no misrepresentation, and can file the I-130/I-485 because there was no misrepresentation. Case law indicates that preconceived intent should not the sole reason for the denial of an adjustment of status.

Filing the I-130 would be the safest approach. However, it should be possible to Adjust Status as long as you two have made no misrepresentations.

:thumbs:

Loto

[trinbajan 0]

I got advice from an attorney. The advice follows:

There is a difference between preconceived intent to immigrate and fraud/misrepresentation.

If you misrepresent a fact to the immigration agency, then there will be negative consequences. Anything that is said or written to an immigration official will be known by all subsequent immigration officials.

Preconceived intent refers to entering the United States with the intent of gaining permanent residency immediately (without leaving the country). Future intent to immigrate is not preconceived intent.

Generally, preconceived intent is a problem. However, since your wife is an immediate relative, there is case law which states that immediate relatives should not be denied adjustment of status based solely on preconceived intent.

So, this means, if she obtains the f-1 status (making sure to indicate that she was married to a U.S. citizen), and then enters the United States on the F-1, you two will face a choice. You can either file the I-130 by itself (this would require her to travel back to Canada for the interview), or she can file the I-130 and I-485 together (commonly referred to as Adjustment of Status). If she does that, you two will have an interview in the United States at the immigration office closest to your residence (there is one in New York City). By filing for adjustment of status, she will also be able to obtain work authorization about 90 days later.

In deciding whether to file the I-130 alone, or the I-130 with the I-485, it comes down to the question of whether you made any indication that stated she planned to return to Canada. For example, if at the border (or the consulate) the official asks if she plans to return to Canada, she will either have to say yes or no. If she says yes, and then she files the I-130/I-485, she could be accused of making a misrepresentation to an immigration official. If she says yes, and then files the I-130, there will be no misrepresentation or preconceived intent because she is leaving the country before she is granted permanent residency.

She should always truthfully answer a question from an immigration officer (or on an immigration form). She should also make sure that she does not hide her marriage to a US citizen.

If the topic of returning to Canada never comes up, then she made no misrepresentation, and can file the I-130/I-485 because there was no misrepresentation. Case law indicates that preconceived intent should not the sole reason for the denial of an adjustment of status.

Filing the I-130 would be the safest approach. However, it should be possible to Adjust Status as long as you two have made no misrepresentations.

Wow I'm so glad I found this post because it is exactly my issue... almost.

I am in Canada attending school and my husband is in the US and I applied for a grad program there and we also wanted to file the I-130 so I can get in state tuition. I called a lawyer and he was rude and put me on hold for 4 minutes before I finally hung up but he made it seem like I was an idiot for not just entering the country and filing for AOS.

If I read this correctly as long as I inform the immigration people in the airport that I have a I-130 that I am filing and I intend on returning to Canada to complete the consular processing and immigration interview while I attend school on the F-1 I would not be misrepresenting myself and therefore not committing a crime.