AoS from a student visa while marry to a Gc holder

[Andrea&Henry 311]

Hi, I need some help for a friend with her AoS. She came to the States with a student visa. While she was studying she met her current husband, and after and a year and half dating they tied the knot! They've been married for 17 month now. She still have a valid student visa, so she wasn't too worried about adjusting. But her husband wants her to have her GC and not to wait until the F1 expire. Some facts: 1.-she has a valid F1 visa, 2.- her husband is a permanent resident( he will be applying for his citizenship in Oct 2013) Questions: does she need to wait for him to become in USC to file for her AoS or can she do it while he still is a GC holder? 2.- what documents she needs?

[didopage 337]

In her actual situation, she can't AOS right away. Her husband will first need to file a I-130 petition, and wait for her priority date to be current. Right now, March 2011 is the current priority date. The process takes a long time for a spouse of a permanent resident.

Look here: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=75783e4d77d73210VgnVCM100000082ca60aRCRD&vgnextchannel=75783e4d77d73210VgnVCM100000082ca60aRCRD

It would be easier and faster to wait until he becomes a US citizen.

When does her visa expire?

[Andrea&Henry 311]

Her student visa expires by mid 2014...so is rather for her to wait for his citizenship and then AOS plus I 130

[Harpa Timsah 13,258]

Andrea, no movement on your AOS? Balderdash!

[newacct 688]

1. It's not relevant when the visa expires (the visa could have been expired years ago for all they care). It's when the student status ends that matters. Even after graduation, F-1 people can do OPT for a year, so their status can last until at least graduation + 1 year (assuming they can find work on OPT).

2. Her husband can file the I-130 now, while he's a permanent resident. There's no harm in applying now. If and when he becomes a citizen, the petition can be upgraded to the immediate relative petition and then I-485 can be filed immediately.

[Andrea&Henry 311]

She told me that her visa wxpires on 2014 but she graduated before and her opt expired 3 month ago, so basically her f1 visa is useless. She went to Domenican Republic with her husband to spent a few days in a beach resort and when she came back she was almost deported. She has a 10 years tourist visa so the immigration officer gave her a second chance. Her i94 expires in Oct 2013. Does she needs to leave and wait for the i130 or she can stay with the i130 pending? Actually we're both super confused cause I usually help people who are married with USC not with permanent residents. If her husband files for her 130, can she work and travel or she needs to wait for the AoS? Please help!

[Harpa Timsah 13,258]

As the spouse of a PR, she can only adjust status when her priority date is current, and if she has no overstay. Dido pointed out above that petitions from 2011 are now current, so that means your friend would have about a 2 year wait to be able to adjust, and she would have to stay in status the whole time.

If her husband will be a USC later this year, then she can adjust with no wait based on being the spouse of a USC.

She can file I-130 now if she wants, but it doesn't really matter. She cannot work or do anything with I-130 itself, and it does not protect her status in any way. She cannot file for EADs based on pending I-130, only pending I-485,and she cannot send I-485 now. Once the husband becomes a USC they canl "upgrade" the petition and send the I-485 part, but there is nothing to be gained by sending in the I-130 early. Might as well just wait and send it all together, a concurrent I-130/I-485 for spouses of USCs.

Edited April 19, 2013 by Harpa Timsah

[Andrea&Henry 311]

As the spouse of a PR, she can only adjust status when her priority date is current, and if she has no overstay. Dido pointed out above that petitions from 2011 are now current, so that means your friend would have about a 2 year wait to be able to adjust, and she would have to stay in status the whole time.

If her husband will be a USC later this year, then she can adjust with no wait based on being the spouse of a USC.

She can file I-130 now if she wants, but it doesn't really matter. She cannot work or do anything with I-130 itself, and it does not protect her status in any way. She cannot file for EADs based on pending I-130, only pending I-485,and she cannot send I-485 now. Once the husband becomes a USC they canl "upgrade" the petition and send the I-485 part, but there is nothing to be gained by sending in the I-130 early. Might as well just wait and send it all together, a concurrent I-130/I-485 for spouses of USCs.

Ok Now I got it! But her i94 is gonna be expire by this october so is she going to be ilegal? She doesn't care if she cannot work or travel for a time, but she doesn't want to be ilegal while waiting. She is afraid that if a cop (for example) pull over her, she can be in serious problem and potentially deported. A spouse of green card holder cannot even drive? Can she get deported once her i94 expires?

[belinda63 3,039]

When her I-94 expires she will be out of status and deportable. Her spouse being an LPR he can only file the I-130 and she must wait for a visa number to become available. She can only file to adjust status when the visa number is available and if she is inside the US in status.The I-130 gives her no status to remain inside the US.

Although he is eligible to file for citizenship in October it might take around five months to complete the process depending on where he lives (could be more, could be less). When he becomes a citizen he can upgrade the I-130 and file to adjust status for her even if she is not in status at the time. Overstays are forgiven for immediate relatives of US citizens.

[Harpa Timsah 13,258]

I thought you said the visa expires in 2014... so yes, she can be deported when her I-94 expires (so can spouses of USCs btw), but you said the husband is eligible for citizenship in Oct. 2013 and her visa expires mid 2014. So it seems to me he applies for citizenship, waits his months, and then applies for concurrent AOS for her. The timeline seems to work nicely.

And no, there is a wait for spouses of LPRs to be able to get a visa/adjust, and while the wait is happening, the spouse is not entitled to anything special, no work permit, no extra legal presence etc. Think if she was back in her country and waiting for her priority date to be current. She couldn't come here any earlier or get special permissions. There is a limit to the amount of visas per year that can go to spouses of LPRS, and that is the reason for the wait - there are more requests than visas available.

[Inky 1,111]

Not adjusting from a family based visa, moved to adjustment of status from work student tourist.