Tricky situation with my fiancee's tourist visa

[Fred.cur 0]

Hello

My fiancee and I moved to NYC on July 2012. I entered with my student visa (due 2014) and she entered with a tourist visa. We went back to Brazil for Christmas and reentered the US on January 6th. The problem is: since she was here for 5 months already, she was only given one month to stay here.

We want to change her status by enrolling in an english school. Question:

1) Supposing we pay for everything and pay for a change of status (I-539), what if they don't give an answer before her I-94 expires?

2) is there any better option to keep her here legally? I considered an extension of the tourist visa, but there's no real reason besides we being together. Thanks God money is not an issue

Thank you very much for any help

[jaycali 415]

If you want to stay together in the US while you're in school, you're making the right move by staying away from the tourist visa (as a tourist visa is for tourists, not for moving). Entering and leaving on a tourist visa will eventually result in a denied entry, and very slim chances of a new non-immigrant visa any time soon. You're lucky she was able to re-enter so soon after a 5 month stay.

As for your questions:

1. I don't know enough about status changes from tourist to student unfortunately. I really don't know if filing the I-539 will leave her in lawfully in the country after the I-94 expires.

2. I highly doubt an extension would be granted. I'm assuming you're on an F-1. An alternative would be to get married sooner rather than later. She'd then be eligible for an F-2 visa, meaning she can stay in the US for as long as you're in F-1 status. Note that she cannot work on an F-2, nor can she enroll in school.

Hopefully someone else will chime in on the I-94 question. You may want to ask the international student adviser at your school about that - They're usually very well versed in student visas and change of status.

Best of luck!

Edited January 9, 2013 by Jay Jay

[Jot18 47]

best of luck!

[Boiler 43,437]

Did you declare the intent to change status on entry?

[Asia 2,491]

If she was given 1 month only, are there any other restrictions on her I-94?

Something like NO AOS/EOS/COS?

If so, she can't do anything.

[aaron2020 11,651]

Hello

My fiancee and I moved to NYC on July 2012. I entered with my student visa (due 2014) and she entered with a tourist visa. We went back to Brazil for Christmas and reentered the US on January 6th. The problem is: since she was here for 5 months already, she was only given one month to stay here.

We want to change her status by enrolling in an english school. Question:

1) Supposing we pay for everything and pay for a change of status (I-539), what if they don't give an answer before her I-94 expires?

2) is there any better option to keep her here legally? I considered an extension of the tourist visa, but there's no real reason besides we being together. Thanks God money is not an issue

Thank you very much for any help

It looks like your girlfriend has been using her tourist visa to live in the US. That's probably what CBP suspected, and that is why she was given only another month (5 + 1 = 6 months). Essentially, the US is saying - yes you are not breaking any laws, but you are spending so much time in the US that it looks like you living here, so you only get up to the 6 months on a visitor visa.

Her passport could have been tagged. Any change in status now may be suspicious because with only 1 month in the US, any change in status would confirm CBP's suspicion that she was using the tourist visa to live in the US. (Lots of people are under the mistaken idea that they can use the tourist visa to live in the US for up to six months, leave the US briefly, and then come back to the US for another 6 months. CBP knows the truth, that these people are abusing their visiting privileges by essentially living in the US illegally.)

If you want to do this the legal way, then be aware that CBP may already suspect that she is trying to circumvent the non-immigrant part of her visitor visa.

[caly 48]

If you want to stay together in the US while you're in school, you're making the right move by staying away from the tourist visa (as a tourist visa is for tourists, not for moving). Entering and leaving on a tourist visa will eventually result in a denied entry, and very slim chances of a new non-immigrant visa any time soon. You're lucky she was able to re-enter so soon after a 5 month stay.

As for your questions:

1. I don't know enough about status changes from tourist to student unfortunately. I really don't know if filing the I-539 will leave her in lawfully in the country after the I-94 expires.

2. I highly doubt an extension would be granted. I'm assuming you're on an F-1. An alternative would be to get married sooner rather than later. She'd then be eligible for an F-2 visa, meaning she can stay in the US for as long as you're in F-1 status. Note that she cannot work on an F-2, nor can she enroll in school.

Hopefully someone else will chime in on the I-94 question. You may want to ask the international student adviser at your school about that - They're usually very well versed in student visas and change of status.

Best of luck!

The F-2 for her is the most viable option. She would have to return to Brazil to apply for the F-2 through the embassy there. I know an I-20 is needed for this. Not sure what else. Hopefully someone else who knows more about this will come along and chime in.