Permanent Resident, F1 visa, marriage

[gakuenso 0]

Hi everyone, I'm not quite sure where this belongs, so here's our situation:

Me:

US Permanent Resident (roughly 3.5 years to go until I can get citizenship)

My Fiance:

F1 Visa 1st year PhD student, wants to quit.

We will get married very soon.

Our dilemma:

1. My fiance wants to stay in the US and live with me - without having to goto school.

2. She can't file I-485 until I-130 is approved AFAIK.

3. Currently wait time for I-130 approval is about 2 years. She doesn't have a valid status otherwise.

Thus, if she: drops out of school and files I-130, she will lose her status, and no longer be allowed to stay in the US?

ie. There's no other way for her to stay with me unless she finishes school so as to maintain a valid F1 status?

What are our options?

Edited September 19, 2012 by gakuenso

[Little_My 463]

Not much you can do. Since you're not a citizen, there's a long wait for her to become eligible for AOS. Overstay is only forgiven for spouses of US citizens - not spouses of LPRs - so she has to either maintain a valid visa status in the US until she is eligible for AOS, or once her status expires, she would have to leave, return home, and wait for her PD to become current abroad.

The only way for her to stay in the US with you from now until you can file the I-485 is to maintain some non-immigrant visa status. She cannot just stay here. So her options are basically to either stick it out with the school and F-1, for as long as her F-1 is valid, or try to get another type of a visa, such as H1-B, that will allow her to remain in the US.

[Penguin_ie 5,984]

Your understanding is correct.

Maybe explore what about her PhD program she doesn't like? Maybe transfering to a different program/ uni would help?

[Newbie608 103]

The best thing she can do is maintain her F1 status until you become a Citizen. If she quits school now, you can't help her as a LPR. She would eventually be out of status and risk deportation and you don't want that. Did she apply for opt after her Masters? That would be a great option since she could be sponsored by the employer and a greencard would be possible?

[gakuenso 0]

Hm thanks for the response - how is it that H1B visa holders are able to so quickly have their spouses arrive and live with them? I don't necessarily need my fiance to work. It seems that having a green card is almost one step below H1B in terms being able to have spouse stay with me.

Edited September 19, 2012 by gakuenso

[Asia 2,491]

It seems that having a green card is almost one step below H1B in terms being able to have spouse stay with me.

Yes, but green card gives you the right to stay in the US permanently and apply for a citizenship in the future.

H1B isn't equal to green card. It isn't an immigrant visa per se. It might get you a green card eventually, but it's not that obvious.

Edited September 19, 2012 by Asia

[gakuenso 0]

Boggles my mind.

[Newbie608 103]

Are you currently on a H1B visa?

I asked because I don't really understand why you worried about h1b holder bringing their spouse to the US.

when you are a LPR

[gakuenso 0]

I'm not on H1B - I'm on green card - just wanted to know if there was a safe way to keep my fiance with me without going through the F1

[Asia 2,491]

I'm not on H1B - I'm on green card - just wanted to know if there was a safe way to keep my fiance with me without going through the F1

If you want her to be with you while waiting for her green card, she has to maintain a legal status for the whole time.

You have less rights as LPR as you would have as USC. And she has less rights as LPR's wife (not girlfriend or a fiance).

That's the difference.

And as LPR, you can't apply for her, unless she becomes your wife, but I guess you know that already.

Edited September 20, 2012 by Asia

[hmh33 117]

OP: How did you obtain your green card?

I've wondered whether in this sort of situation it could be quicker for the LPR to abandon their green card, marry, then file for a new immigrant visa on whatever basis they originally got the green card, the spouse then being able to file simultaneously as a dependent. A bit of a crazy plan though.

[Little_My 463]

I don't see how that would make any sense. if the OP gave up his GC, reverted to.. let's say H1-B (assuming his GC was work-based and that job could potentially sponsor him an H1-B), and the wife got to come to the US/stay in the US as his dependent - then what? The OP couldn't re-apply for a GC, revert from H1-B to GC, and again keep his wife in the US until she was eligible to AOS - the wife's visa status was dependent on the H1-B, and once the OP would convert from H1-B back to GC, the basis of her visa would no longer exist. Back to square one.

[hmh33 117]

I don't see how that would make any sense. if the OP gave up his GC, reverted to.. let's say H1-B (assuming his GC was work-based and that job could potentially sponsor him an H1-B), and the wife got to come to the US/stay in the US as his dependent - then what? The OP couldn't re-apply for a GC, revert from H1-B to GC, and again keep his wife in the US until she was eligible to AOS - the wife's visa status was dependent on the H1-B, and once the OP would convert from H1-B back to GC, the basis of her visa would no longer exist. Back to square one.

Ah, but anyone (on H-1B or otherwise) who is eligible to apply for an employment-based green card can include dependents (spouse and children) on the petition, and they all get green cards at the same time.

[gakuenso 0]

If you want her to be with you while waiting for her green card, she has to maintain a legal status for the whole time.

You have less rights as LPR as you would have as USC. And she has less rights as LPR's wife (not girlfriend or a fiance).

That's the difference.

And as LPR, you can't apply for her, unless she becomes your wife, but I guess you know that already.

Yes - for the sake of argument we're already legally married. So marriage is not an issue. But its a matter of what other forms of legal statuses can she have aside from an F1 (since waiting 2 years for an I130 is somewhat absurd)

[gakuenso 0]

Oh, I have another question. There is the I130 processing time and the F2A bulletin. What is the exact relationship between these two?

The current F2A is May 2010, where as the processing time is only 5 months. Does this mean the following:

1. File for I130 -> wait 5 months -> I130 approved -> wait 2 years -> get I485 -> wife can quit student/leave F1 status?