Married F-1, no AOS, she left, is returning next week....

[morgonzo 0]

Okay - in a nutshell:

My fiance and I married while she was in F-1 status (I am American) with the intention of filing for AOS before she returned home to finish her studies in France. We ran out of time, didn't file for AOS before she was due to leave.

She has since returned to France and is returning next week - 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.

As stated prior, she has a job offer, 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 home 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]

Here's what I would suggest..

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.

[morgonzo 0]

thanks so much "little my" - I was hoping you would reply. you're like everyone's guardian angel on these forums, taking care of everybody and such. thank you for the time you put into helping everyone out - you're doing a great thing. -cheers

[Little_My 464]

"Guardian angel" might be going a bit far.. But thanks I got a lot of help from here during our process, so I'm more than happy to help others. Just keep in mind that I'm no immigration lawyer! However, I don't think she'll have any issues returning to the US. I wouldn't immediately proceed to file for AOS though, OPT to CR-1 or H1B and then AOS seems safer to me.

[morgonzo 0]

Okay - I need some more clarification -

So if she is sponsored with the H-1B visa through work, and she is already married to me, can she apply for the greencard herself? or will her employer have to file the paperwork for her? from what i understand, she may not be granted an H-1B due to the fact that we got married while she was on an active F-1 and left only to return to finish school invalidating her status because it would appear that she would eventually want to apply for a greencard? (am i right about this? if a non-immigrant marries, leaves and returns, isn't their assumption that she wants to immigrate? isn't this exactly what a non-immigrant is suppose to NOT do?) So, summed up, will having been married on an F-1, leaving without filing AOS, and returning make it impossible to be sponsored with an H-1B or make it impossible to immigrate via her H-1b (and, again, will she be able to file for AOS or will her employer have to?)? I realize i just completely repeated everything, to clarify my lack of knowledge, and to try to better understand my question...this is one of the more confusing subject matters i've dealt with. thanks!

[Little_My 464]

Technically she could eventually pursue a GC through the HI-B, but that is a VERY long and time consuming process and she would first have to be here on a work visa for several years before she would even qualify to apply for a GC. She is married to a US citizen, which gives her an immediately available visa number and makes her eligible to become a permanent resident. No matter how you choose to go about this, it makes sense for her to get her LPR status through her marriage to you.

Now, someone else can correct me if I am wrong here - but the way I see it is, that assuming she will be let back in to the US whenever she attempts to return next, you're pretty much in the clear. The problem might arise if she is questioned at POE about her intentions here in the US, and it comes up that she is actually married to a USC. IOs at POE have the right to deny entry, if they think she might be planning to AOS once she is in the country, sicne her F1 status is not meant for immigration purposes. However, if she is not questioned about that part, or the fact that she's married to a USC does not come up (and if she is asked, she should be honest!), she'll most likely be let in and that's that.

Now, after that, I would not encessarily pursue AOS right after she has returned, as there definitely already is an established intent to immigrate from her part. However, nothing stops her from pursuing the H1-B visa, which is dual intent, and then eventually adjusting her status from that. She will adjust her status through you and the marriage, not through her employer.

Marrying you does not in any way invalidate her F1 status. It's the actions you take afterwards that determine whether or not you are doing things by the book. AOS straight after re-entry would be a bit fishy at this point since she obviously is planning to immigrate, but I'm pretty sure the H1-B route is a safe bet. However, a more experienced VJ member will hopefully chime in here soon.