Need quick advice: visa expiring soon, no confirmation application’s pending yet

[cmh 6]

My wife’s F1 visa expires 15 Aug. Our application was originally rejected due to incorrect payment, which we received i797c rejection notices containing receipt numbers for i485, i130, i765. Immediately resubmitted correct payment, and funds were transferred from the bank account to USCIS the following week, around the beginning of Aug. However, no update at uscis.gov using the receipt numbers from the rejection i797cs that confirm the application is pending, and uscis over the phone gave different answers as to whether the application is considered pending and how long it would take to receive confirmation in the mail. Despite my reassurances she’s okay to stay based on the research I did and what USCIS said over the phone, my wife is still strongly considering returning to her home country before the visa expires due to her belief she would be illegally staying in the country. My concern is that her leaving might cause more issues; for example if the application is actually considered pending already then the application could be deemed abandoned. No nearby appointments available. Advice?

Edited August 7, 2018 by cmh

[KathCali 47]

10 minutes ago, cmh said:

My wife’s F1 visa expires 15 Aug. Our application was originally rejected due to incorrect payment, which we received i797c rejection notices containing receipt numbers for i485, i130, i765. Immediately resubmitted correct payment, and funds were transferred from the bank account to USCIS the following week, around the beginning of Aug. However, no update at uscis.gov using the receipt numbers from the rejection i797cs that confirm the application is pending, and uscis over the phone gave different answers as to whether the application is considered pending and how long it would take to receive confirmation in the mail. Despite my reassurances she’s okay to stay based on the research I did and what USCIS said over the phone, my wife is still strongly considering returning to her home country before the visa expires due to her belief she would be illegally staying in the country. My concern is that her leaving might cause more issues; for example if the application is actually considered pending already then the application could be deemed abandoned. No nearby appointments available. Advice?

Overstay is forgiven for spouses of US citizens. If she leaves, yes the application will be considered abandoned. If she leaves after her F1 expires, the application will be considered abandoned and she will also trigger an overstay bar. She should not leave the country until she receives advance parole.

[mushroomspore 3,043]

19 minutes ago, cmh said:

My wife’s F1 visa expires 15 Aug. Our application was originally rejected due to incorrect payment, which we received i797c rejection notices containing receipt numbers for i485, i130, i765. Immediately resubmitted correct payment, and funds were transferred from the bank account to USCIS the following week, around the beginning of Aug. However, no update at uscis.gov using the receipt numbers from the rejection i797cs that confirm the application is pending, and uscis over the phone gave different answers as to whether the application is considered pending and how long it would take to receive confirmation in the mail. Despite my reassurances she’s okay to stay based on the research I did and what USCIS said over the phone, my wife is still strongly considering returning to her home country before the visa expires due to her belief she would be illegally staying in the country. My concern is that her leaving might cause more issues; for example if the application is actually considered pending already then the application could be deemed abandoned. No nearby appointments available. Advice?

If the money was transferred, it means they have your paperwork and it is now being recorded into their system. You should receive new notices with proper receipt numbers that can be used to track your case status. USPS didn't properly scan our package at delivery so the tracking never updated to "delivered". I did not sleep for a week. Then my husband checked our bank account and USCIS had cashed our checks. We got the receipt notices on August 15, 2017 and the notices were dated "August 8, 2017". The date on the notice is the date USCIS officially acknowledges as your "receipt date" or "priority date"

 

As said above by KathCali, your wife will cause IMMENSE problems if she leaves now. Having a pending green card application puts you in "authorized stay" starting from your priority/receipt date. It doesn't matter if any other visas or statuses have expired or are expiring soon. Leaving the US during your pending green card case with no Advanced Parole document will automatically cause your case to be considered "abandoned". You would have to do CR1 spousal visa and she would not be able to come back to the US until it is approved (about a year). 

 

Even if her F1 status expires BEFORE you receive the new receipt notices and she technically incurs "overstay", the overstay will be so minimal and USCIS won't care as it is forgiven for US citizens' spouses. So tell her to take a deep breath and just relax about this because she is grossly misunderstanding the technicalities.

Edited August 7, 2018 by mushroomspore

[Tilly87 14]

I echo the advice given in this thread, your wife should NOT leave the country. I was also an F-1 student  (completed a post grad OPT), and I went through a scary period while waiting for our Notice of Action receipts (I-797C's): my F-1 had finished, and I was on the 60-day grace period before having to leave the country (because I hadn't had any unemployed time during my OPT). So technically I wasn't overstaying, but if someone had asked me to present documents during that period, I had nothing that officially explained the grace period. I was white knuckling it till those receipts arrived, so I fully understand how nerve wracking it is! And in our case, the check was cashed, then a week later I received my biometrics appointment letter, our receipts actually took longer to come (I want to say it was two weeks?). But as our lawyer explained to me when we were going through this stage, the check being cashed provides confirmation that USCIS has accepted your case and the wheels are in motion. That is what I held onto during that time, the knowledge that I was doing everything legally correctly, and that if asked for papers I had at least some sort of paper trail with my expired visa & the bank record of the checks being cashed. This of course is not a guarantee that you won't get a request for evidence (RFE) down the line (we did), but it does mean that your partner is legally present in the US while the case is being worked on. If your partner leaves before receiving advanced parole (I-131 if you filed for it), the case would be considered abandoned and you would lose any fees paid. You can file for something called a CR-1 (I think) for spouse to immigrate to US from outside country, but that means you'll be living apart for the whole process, and would pay fees all over again. Since your partner is in the states already, adjusting seems like the most logical path to proceed. Also note, things at USCIS seem to be moving very slowly as of late, so don't panic if things like receipts take longer to arrive than is the norm, just keep that in mind and make inquiries. Best of luck to you both!

[mushroomspore 3,043]

If it makes your wife feel any better, tell her that literally EVERYONE in this specific sub-forum of VJ was originally in the US on a non-immigrant visa (many were F1 like her...some of us are adjusting from work or tourist visas), ended up getting married to their American spouse, filed AoS papers and did NOT leave the US even after their original status expired and have gotten their GC's perfectly fine without any problems because those are actually the rules of USCIS. I'm adjusting from B2 tourist (expired 11 months ago) and have not left the US at all. We're awaiting our interview now, got EAD/AP and all other relevant paperwork.