AOS while out of status from M-1 visa?

[a1000elephants 2]

My now fiancé came to the US from Canada on an M-1 student visa almost 2 years ago, and has been enrolled full-time in his program since. He missed the required window of time to file for his one year extension on his visa last February. We sent the paperwork before his visa expired, but it wasn't the full 15 days in advance that is required. As a result, his extension was denied, and we were informed in April that he was out of status. We submitted a reinstatement application in May, and we have since been waiting to hear back. Since submitting the reinstatement application, we have decided to marry. The student visa and out of status situation is the only concern we have about this whole situation. I'm a USC, and he has no negative marks on his record, hasn't been working illegally, etc. We have very solid evidence of our relationship, and are not concerned with that portion of the process. So if it weren't for him currently being out of status while we wait for a response on the reinstatement, we'd be a pretty open and shut easy case.

Until today, I was under the impression that it was much safer to wait till we heard back on the reinstatement, and then get married, and then file for AOS. But I'm seeing some posts on visajourney that seem to say you can still file for AOS while out of status and that this isn't so much of a red flag? If the reinstatement gets approved, it would only extend the visa through the end of January anyway, so I would want to try to get the AOS papers submitted before then, and I'm starting to worry we'll run out of time. So if we can go ahead and get married now and put together the papers, that would be great. Does anyone have any suggestions?

Edited November 18, 2014 by a1000elephants

[Boiler 43,394]

Marry and adjust asap.

[a1000elephants 2]

Marry and adjust asap.

Thanks for the reply. Do we need to then do anything with the reinstatement application, to notify them of a change in situation? If we marry, and we then get notice that the reinstatement was denied and he has to leave, and we haven't had enough time to file the AOS, would that cause more issues? I don't think it's likely to be denied, but it makes us nervous all the same.

[CdnRN 40]

Once you adjust as the spouse of a USC the overstay is forgiven. It took me some time to prepare the paperwork (of course I had a newborn at the time, also so it likely wouldn't take you as long!), and then there is a lot of waiting.

I would start working on gathering the paperwork now, marry ASAP and file AOS. Others can comment more, but I believe you don't need to do anything about the extension, they are separate processes. Let that continue as is.

Good luck!

[a1000elephants 2]

Once you adjust as the spouse of a USC the overstay is forgiven. It took me some time to prepare the paperwork (of course I had a newborn at the time, also so it likely wouldn't take you as long!), and then there is a lot of waiting.

I would start working on gathering the paperwork now, marry ASAP and file AOS. Others can comment more, but I believe you don't need to do anything about the extension, they are separate processes. Let that continue as is.

Good luck!

Thanks so much for the response. I'm hoping it won't take too long for us to do the paperwork (that's kind of my specialty).

I think my main source of confusion is that if the reinstatement is denied, do they begin removal proceedings? Or would he still just be out of status? I saw that filing an AOS after "removal proceedings" are initiated is a big red flag, but if he would still just be out of status, that seems ok. So if anyone has clarification on this, I would appreciate it.

[Leo7777 243]

The chance of removal proceedings being started for a citizen of Canada who has been a student with no criminal record would probably be something like one in 500,000. And even that would be done by mistake.

You are practically home free; even as it is grossly unfair to those who have to wait months and years apart waiting to be together.

[CdnRN 40]

Thanks so much for the response. I'm hoping it won't take too long for us to do the paperwork (that's kind of my specialty).

I think my main source of confusion is that if the reinstatement is denied, do they begin removal proceedings? Or would he still just be out of status? I saw that filing an AOS after "removal proceedings" are initiated is a big red flag, but if he would still just be out of status, that seems ok. So if anyone has clarification on this, I would appreciate it.

If you have already filed you will be fine, I wouldn't wait. As for if you wait, the likelihood that they would do anything to a Canadian is slim. Put it this way: when my husband and I showed up for our green card interview, the IO who was doing the initial at the door verification etc said, once he saw I was Canadian, "why did you come this direction???" We knew we'd have no troubles at that point. Marry, file, you will be just fine.

[Boiler 43,394]

OP has legitimate concerns. Hence asap.

[rockstar 0]

I concur with the others that I think you will be fine, but for reassurance, you might want to do a quick consult with an immigration attorney who specializes in cross border situations with Canada and then move forward with filing. The guides here are super comprehensive!