Live in the US while waiting for i-130?

[driver 9]

My wife is about 1.5 years away from getting her citizenship. In the meantime, her sister is here in the US (for 1 year now) on a F-2 Visa. Her husband has a F-1 visa (all are from Korea).

If she files an i-130 for her sister, it looks like that is possible. On the USCIS webpage on the "Green Card for a Family Member of a U.S. Citizen" it says, "Get a Green Card While Inside the United States".

Quoted:

Step One – Your U.S. citizen family member (sponsor) must file the Form I-130, Petition for Alien Relative, for you and it must be approved. You must wait for your priority date in your immigrant visa category to become current. Your priority date is the date when the Form I-130 is properly filed (with correct fee and signature) on your behalf by your U.S. citizen relative. For more information on priority dates, see the “Visa Availability & Priority Dates” link to the left under “Green Card Processes & Procedures.”

So it looks like she waits ~10 years, then can file for a green card. In the meantime, can they stay in the US?

What happens when school is finished?

Can they stay in the US while the i-130 is in limbo pending state?

If they can stay, can they work? or do they just have a 10 year vacation?

Do they need to return to Korea?

The website is not clear about their status once an i-130 is filed while living in the US already.

[Anh map 2,098]

Waiting for a visa to become available does not confer work authorization.

Once the F visas expire they are out of status.

Like the old saying goes: don't have to go home, but can't stay here.

[ceadsearc 516]

They can stay in the US as long as they have some other legal means to do so aka another visa that allows this. So if they are legally on F-1 they can stay till that expires so long as they meet the requirements. Then they have to leave.

Given how long it takes to get a GC through a sibling (10+ years once filed so about 12 years for your SIL) it's highly unlikely they could legally remain in the US that whole time unless they are able to obtain an H1-B or similar visa. If they overstay they won't be eligible for the GC through F4 until they sit out a ban.

[JimVaPhuong 4,863]

In order to adjust status an alien must be eligible to receive an immigrant visa (a petition has been approved), they must not be inadmissible to the United States, they must have valid current non-immigrant status (their authorized stay hasn't expired), and there must be an immigrant visa number immediately available to them.

There won't be an immigrant visa number immediately available to your sister in-law until the priority date on her I-130 is current. The wait is currently about 10 years, plus a year and half before your wife becomes a US citizen and is eligible to submit a petition.

The requirement that the alien have valid non-immigrant status is waived for immediate relatives of US citizens; spouses, minor unmarried children, and parents. It's not waived for anyone else. Your sister in-law and her husband would need to be lawfully present in the US at the time they send their green card applications.

A pending or approved I-130 doesn't provide any sort of immigration status to an alien. It just makes them eligible to apply for a visa. They'd need to find some other way to legally stay in the US for 12 more years, or they'd need to return to Korea.

[driver 9]

I figured as much. So once their student visa runs out (and assuming they can't get a renewal) and they move back to Korea...

What documents will I need to file? or will I (or they) just need to file change of address?

[driver 9]

PS. What's the difference between my wife being out of status between marriage (after entering the US with K1 visa) and filing the AO... and someone out of status with F-1 waiting for i-130? In both cases they are in the US with a useless visa...

[Penguin_ie 5,994]

The F1 couple of not getting married to a US citizen.