Married a F1 Student - No time to file I-485 Before she returns to FR to finish studies. .

[morgonzo 0]

Hi all - sorry if we're beating a dead horse here but here goes. . .

My wife and I got married last month hoping to file the I-485 before she has to return to FR to finish her studies in July. She is currently here on a F1 student visa that expires in 2015 contingent upon I-20 signatures that can extend her stay for 6-12 months per signature - for internship opportunities. We realized that she wouldn't be receiving her I-131 to travel freely between the US and FR before July and would have the I-495 rejected due to abandonment of AOS.

What do we do??

We don't really want to spend a year apart if we can avoid it - I'm being told that our only option is for me to file the I-130 after she's returned, then she'll file the CR1 in Paris - and 1 year down the road we'll be together again.

Can she not get an internship, have her I-20 signed and return without running into problems at the POE?

Can she not get a job and receive a work visa?

What are our options??

Please hellllp!

thanks

[morgonzo 0]

It should also be noted that she still needs to apply for an OPT and receive a EAD card: will her trip to France in July (ideally returning Sept.1) make her EAD and OPT invalid? or can you freely travel once you've been granted these?

Edited May 19, 2011 by morgonzo

[Otto 83]

** Topic posted in K-1 Fiance Visa Procedures when it may be most appropriate in the Adjustment of Status from Work, Student, & Tourist Visas; moving thread there.

[Little_My 464]

If I understand you correctly..

- Your wife is here under an F1 visa, but she is not pursuing a full degree but is in fact still enrolled as a student in France, and is doing something related to those studies here?

- You have gotten married, but have not filed for AOS yet

If I understood your post correctly, you can either..

1. Have her return to France, finish her studies there, file for the CR1 asap and have her enter the US with the CR1 about 9 months from filing. She would become a legal permanent resident, i.e. green card holder immediately upon arrival to the US once she has the CR1 visa.

2. File for AOS now, which means she won't be able to leave until she has her AP, which will probably be about 70-90 days from when your AOS has been received by USCIS

She cannot get a work visa unless an employer is willing to sponsor one for her. If she has not yet applied for EAD, she probably would not have that either before planning to return to France in July, it usually takes between 70 and 90 days as well to get that approved. Also, if you are planning to do the AOS / CR1 process soon, OPT is more or less a waste of money and paperwork. Of course, you can apply for OPT and buy her an extra year in the US under OPT, and then eventually file for AOS whenever down the line before her OPT expires. Just keep in mind that if she plans to apply for OPT before her trip to France, traveling with a pending OPT application that has not been approved yet is also not a good idea, she might very well be denied entry back to the US.

This I-20/internship/F1 thing is confusing me a bit though. Was she here to obtain a degree? Or just doing internships? Vocational/professional exchanges are usually done with the J- or M-visas, and F1 is used for foreign students who are here to get degrees. But maybe I am just missing something.

[missicy 87]

How long is she going to stay in France when she returns in July?

Once you apply for AOS and green card is issued, she will have to maintain residency, meaning not leave the US for long periods of time (less than 6 months to avoid issues when re-entering).

Looks like your only option is CR-1 visa, she will become permanent resident when she enters the US with it.

[morgonzo 0]

She is here completing her MBA and has the option to apply for the OPT if she can get an internship. The form (I-20 methinks) has 5 lines for signatures on it - every signature extends her visa for another year. The visa potentially expires in 2015 if she had signatures that would allow for this - otherwise it will expire when she leaves POE. We are definitely in a bind.

Really, the big question is whether she can get sponsored for a work visa even though she has married me, a USC (?). We are worried that she would be denied because she has already married a USC and will eventually want to immigrate, even though this was never her intention prior to coming here - of course, upon her re-entry it would then be her intention.

I think she will try to shoot for the OPT so we won't be separated for 9 months and just file the I-485 immediately as she returns. She leaves on July 10th and is planning to return Sept. 1 - is this even possible? can she get her OPT/EAD squared away before then?

Thanks guys - this site is awesome

[morgonzo 0]

Can she receive her EAD or OPT while she's abroad and return?? If she has her biometrics meeting before she leaves to return to France, that is??

[Little_My 464]

I think you've understood how the I-20 works a bit incorrectly. The lines in the bottom of the I-20 are for travel signatures - they do not extend anything, but give her permission to travel while her I-20 is valid. The length of the validity of a travel signature varies from university to university, but usually international advisers recommend getting a new travel signature either every 6 months or every 9 months. They have nothing to do with her visa, nor the time she is allowed to be in the US.

On the first page of the I-20, there is a date indicating when her studies are ending. From that day onward, she has a grace period of 60 days to stay in the US, until she has to leave. If she applies for OPT, she can stay for an additional year, working in the field she graduated from. OPT placement can be an internship, but it can just as well be a full paid job, as long as her work is related to the field she was studying here in the US.

Again - the signatures in the end of her I-20 DO NOT extend her period of authorized stay. If she extended her studies, she would be issued a new I-20 form with a new date indicating the end of her studies. That is the date that determines when her authorized stay here expires. The end date on her actual visa is also irrelevant in terms of how long she can be in the US - it only tells her until when she can use that visa to enter the US, assuming her I-20 is valid and her studies are continuing. When an F-1 student enters the US, the IO at POE asks for your passport with the visa AND your I-20. If the expiration date of your I-20 has passed, the visa is useless.

OPT takes on average between 70-90 days to be approved, so if she filed right now, she could have it by end of July, but it could also take longer. There is a slight chance she could have it approved by July 10th, but I think that is pretty unlikely.

From what I know H1-B is a dual intent visa, which means that being married to a USC and possibly intending to eventually immigrate is not an obstacle for getting that visa. However, she will first have to find an employer who is willing to sponsor that visa for her, which is not that easy. It is costly for the employer, and in this economy many tend to hire Americans rather than foreigners. Of course she can try to find an employer willing to sponsor her, and if she does, then she can get a work visa and you can do the AOS process somewhere down the line.

Bottom line is, if she is now done with her studies and is leaving on July 10th, she cannot return as an F1 anymore - she might be able to visit under VWP, but that is for maximum of 90 days. If you two file for AOS now, she can stay here, but she probably would not be able to travel abroad on July 10th. She would have to wait for her AP document to get approved, which also usually takes at least 70 days from submitting the AOS application. If she does leave, and cannot get a work visa, then you are left with the CR-1 process, which will mean being separated for several months.

[morgonzo 0]

ok - so to further clarify how the I-20 works: is the signature the only thing required to re-enter @POE? and then, after she has re-entered she can receive her EAD and start her OPT? Does it count as abandonment if she leaves with only the update I-20 and no EAD?

Thanks so much - you're the best!

[morgonzo 0]

nevermind - you already clarified this! sorry

[Little_My 464]

She cannot apply for OPT abroad. She has to apply, and be approved, for OPT before she can travel abroad. Traveling with a pending OPT is not a good idea, there is a big risk of her being denied entry at POE if she leaves before getting her EAD. Some people still leave and travel, and some enter successfully - but many run into trouble at POE when they try to re-enter.

If her actual studies continue, she should have an I-20 that has an end date (the expected date of finishing her studies, on page 1 of the I-20 form) that has not yet passed. If this is the case, she can leave and re-enter with her visa and her valid I-20 form with no trouble. She does also need the valid travel signature, which is the signature on the last page of the I-20.

If she has graduated, i.e. the end date of her I-20 has already passed and she has not been issued a new one, she has 60 days in the US after her graduation, within which she has to leave to avoid occurring overstay.

If she has graduated, and applied for OPT, she will be issued a new I-20 that reflects the OPT and has a new expiration date. She will also eventually get the EAD, which allows her to work/intern during her OPT period. Again, traveling with a pending OPT is a bit risky - but, she can try. There is no way to know for sure if she will or will not run into trouble at POE when attempting to re-enter.

Take your eye off the travel signature on page 3. It should be valid, i.e. no more than 9 months old (that was in the case of my school, her school may advise renewing it every 6 months), but that travel signature alone does not help her in any way. She has to have a valid I-20 and a valid visa at all times to be able to re-enter the US as an F1 student.

[morgonzo 0]

http://www.ice.gov/sevis/travel/faq_f2.htm#_Toc81222042

2.N. Can I reenter if my request for OPT is pending?

Yes, you may reenter to search for employment.

[rika60607 215]

Is she still continuing her studies or did she graduate?

What is validity of F-1 visa in her passport?

To be able to re-enter on F-1 she needs:

1. Valid F-1 visa

2. To be enrolled for continuing study (verified by signature on I-20) or

- have an approved OPT (with EAD on hand) AND a job offer in writing.

If she is done with the school and does not have approved OPT it may be a better idea to file I-130 now and request an advance parole so she could to travel to France and come back.

ok - so to further clarify how the I-20 works: is the signature the only thing required to re-enter @POE? and then, after she has re-entered she can receive her EAD and start her OPT? Does it count as abandonment if she leaves with only the update I-20 and no EAD?

Thanks so much - you're the best!

[morgonzo 0]

Update ---

She has returned to France - I was there visiting last month and had a wonderful time. Prior to leaving she was able to get a new I-20 document allowing her to return to finish her studies. Again, we are already married, and I'm reading all over the place that we are going to have problems - please help out with as much info as you can divulge.

She has a job offer here, and they are likely going to sponsor her with a H-1B work visa - if they don't she will apply for OPT and get her EAD to work and eventually be sponsored with an H-1B. Our main concern now is filing for the I-485 - will it be immediately denied and will she then be deported/banned reentry due to the fact that we married before she left and is now returning with what they assume to be the "intention to immigrate"??? what are our options?? she stays as long as she can with the H-1B and then eventually return and we file the CR-1?? or is the only option for us to share a nationality me getting my french citizenship?? please be descriptive - thanks!

[Little_My 464]

As I mentioned in the other thread, this is what I'd probably do..

1. She returns with her new I-20 (and renewed visa I assume) to finish her studies

2. She applies for OPT and buys herself another year in the US

3. Before her OPT expires, file the I-130 for CR-1

4. Once her OPT status expires, she will have to go to France to wait out the remainder of the CR-1 processing, which hopefully won't be that long. Once she gets her CR-1, she can return to the US and will immediately become a permanent resident. There would be no period when she could not work in the US.

Or.. Go ahead with the H-1B, and eventually AOS from that. From what I remember, it's a dual intent visa, so there won't be the issue of intent.