steel_4d

For the record, we traveled to Canada for xmas and everything went without a hitch. My wife carried an offer letter with her. The border agent didn't even realize that the I-20 was for OPT rather than school, so didn't even ask anything about employment. But she was safe anyway with the offer letter.

Good luck!

[More complete post, as the forum won't let me edit the old post.]

My wife got her green card at the end of July. We simply filed the I-485 as a derivative beneficiary, along with the rest of the usual forms. We didn't need to consult with a lawyer, except at the end to confirm we were on the right track, which was informal and free. It just took a lot reading, digging, and interpreting and reinterpreting the language in the published documents, with useful input from a few people on this thread (mixed in with a lot of the useless ). Thank you guys! We saved around 3 grand in lawyer's fees.

After submission, the process was painless and relatively quick - around 4 months. Applied in April, got EAD/parole in May, and GC at the end of July. Our case was very well documented, with pictures going back to 2004, a proper wedding, all kinds of common bills, common plane tickets, etc, that we sent in with the application package, so we didn't even get called in for an interview or been asked for additional documentation.

The key in all this is that you have to married BEFORE the principal applicant's green card is approved! The paperwork for the derivative spouse can be filed separately at a later date, and there is no problem, no extra delays or anything beyond the usual.

If you are married AFTER the principal green card is approved, you need to get in line and wait a couple of years.

I'm trying hard to remember exactly what the lawyer said regarding the clause "if a visa number is available" that I mentioned above in the thread. I think she said that represents a very unlikely scenario:

-the principal's priority date goes current and green card is approved shortly thereafter

-by some freak event the "current" dates get rolled back

-then the derivative would have to wait until the principal's priority date goes current again.

Hope someone finds this useful.

Good luck!

Thought I would update the thread in case someone finds it useful. My wife got her green card in August. We simply filed the I-485 as a derivative beneficiary, along with the rest of the usual forms. We didn't need to consult with a lawyer, it just took a lot reading, digging, and interpreting and reinterpreting the language in the published documents, with useful input from a few people on this thread (mixed in with a lot of the useless ). So don't be discouraged.

The process was painless, and relatively quick. Our case was very well documented, with pictures going back to 2004, all kinds of common bills, common plane tickets, etc, so we didn't even have to go in for an interview.

Good luck!

These are the exceptions, which she doesn't fall into:

"The following individuals / class of people are not eligible for Adjustment of Status: (Note: Exceptions may apply if you are eligible to adjust status pursuant to Section 245(i) of the Immigration & Nationality Act. For more information on Section 245(i) see the relevant portions of this website).

You entered the U.S. in transit without a visa;

You entered the U.S. as a non-immigrant crewman;

You were not admitted or paroled after being inspected by an immigration officer;

Your period of authorized stay expired before you filed for adjustment, unless you qualify as an immediate relative;

You were illegally employed in the U.S. because you did not obtain USCIS authorization to work before filing for adjustment, unless you qualify as an immediate relative;

You were admitted into the U.S. as a K-1 fiancé(e) or the K-2 child of a fiancé(e) but you or your parent did not marry the U.S. citizen petitioning for you;

You are a J-1 or J-2 exchange visitor but you did not comply with the 2 year foreign residence requirement and you have not been granted a waiver for this requirement;

You are an A non-immigrant or you are employed in a position that would allow you to obtain this status unless you file a Form I-508 and an I-566;

You are an E non-immigrant or you are employed in a position that would allow you to obtain this status unless you file a Form I-508;

You are a G non-immigrant or you are employed in a position that would allow you to obtain this status unless you file a Form I-508 and an I-566;

You were admitted into Guam as a visitor under the Guam visa waiver program;

You were admitted into the United States as a visitor under the Visa Waiver Program unless you are applying for adjustment based on immediate relative status to a U.S. citizen;

You are already a conditional permanent resident

You failed to maintain your non-immigrant status (unless the failure was due to no fault of your own, you are the immediate relative of a U.S. citizen, you are a K-1 (K-2) who married the U.S. petitioner within the 90 day period, or you are a special immigrant)."

This is the category under which she falls:

"• Adjustment based on being the derivative spouse or child of a principal applicant:

If you are currently in the U.S. you may file your Form I-485 simultaneously with the principal applicant or you may file at any time after the principal applicant has been approved, if a visa number is available."

The only part I don't understand is "if a visa number is available". Can someone clarify what that means?

You need to get in touch with someone that can help; this forum is not going to provide what you need.

Interesting answer. You know for a fact that no one has ever been in my situation before? Or somehow they're excluded from this forum? I'm looking for people with similar experiences.

I'm quite sure she falls into the "follow to join"/derivative category, the same as if she was added to my file before it was approved. I don't think she needs to leave, I'm pretty sure she can adjust from F1. Isn't that what this forum is about?

From what I read, only J1 doesn't allow derivative status.

I've been in AOS for years, from H1B, with priority date of Jan 2007.

Married my gf in November 2012. She's been on F1 since June 2011, currently in OPT, with about a year of OPT left.

My I-485 was approved a couple of weeks ago, and I got my green card.

She wasn't added to my case before it was approved.

What's the procedure to apply for her green card? Do we just go ahead with I-485, and I-131 for AP so she can travel? Do we file her I-485 as a derivative beneficiary?

We intend to take a trip outside the country in May. Is it safer to not send in the I-485 till after the trip, in case the AP doesn't arrive in time, so she can still travel on the F1?

The more details and links you can provide, the better. We're not really experts in immigration matters.

Thanks!

This website says the same: http://www.ice.gov/sevis/travel/faq_f2.htm

"2.O. Can I reenter if I left while on OPT?

If your OPT has been approved and you depart before you get a job, your OPT ends and you cannot reenter unless you have a written job offer.

If you have a job, you may travel and reenter to resume work at the same job or you have a written offer for another job."

This sounds strange: "your OPT ends and you cannot reenter unless you have a written job offer". This implies that if you have a written job offer, even after "your OPT ends", you may reenter.

Also this:

http://www.oip.lsu.edu/iso/pdfs/Can%20I%20travel%20outside%20the%20US%20while%20on%20OPT.pdf

According to this website "true" internships qualify as OPT:

http://international.uiowa.edu/international-students/optional-practical-training-opt-12-month-application

I guess those are the words from the horse's mouth, but I'm interested if anyone can add personal experiences.

Thanks a lot.

Really.

Guys... Guys... What do I look like?? Some kind of amateur? I only left the country one time without an AP

Yes, I have my AP, let's get back on topic.

I'm asking because the admin at school told her they might ask about her employment status at the border. Does an unpaid internship count for OPT? Does it even matter while she's within the grace period for finding a job? Does the law say anything about this?

Mine. Let's concentrate on the question at hand... :-P

Ok, it's not really about me, but my wife

She's graduated, got OPT approved, EAD in hand, but no job offer yet. She has until February to find a job. She has a couple of no-pay internship opportunities at the moment.

But we'd like to go visit my family in Canada for the holidays. Will she have issues on reentry?

Applying for a green card is a bit of a ways off, so we need to keep her F1 in play.

Thanks!

Well that's a good first step at least. You may have to re-file your AOS from scratch though, since you've abandoned it.

The problem is my company has changed (I essentially work with the same people, but incorporated under a different name). I believe that means I can't just re-file the AOS, but have to start with a brand new petition from the "new" employer?

I'll be very interested to see whether or not the AP gets you back into the country or not.

I would hope for the best but expect the worst.

It did, no problems, no questions asked. Paroled on AOS. I kept my old I-94 so the question of departure date doesn't come up. I read on an official website that if traveling by air, and my I-94 was not taken, they already have my flight records, and I don't need to do anything further.

I'll figure out my next steps from here, but will update the thread if there are developments.

Thanks, guys.

what are you going to do when you're back in the US?

Like I said in my previous post - file an H1B extension. Which is also contingent on AOS.

But I also need to look into grrreat's suggestion of possibly filing a new I-485. But can I do this if my employer has changed since my initial application?

I do have a supposedly good lawyer, but she doesn't have all the answers off the top of her head. I'm sure she hasn't dealt with many cases like this, either.

Anyways, I finally have the AP on the way to Europe by Fedex.

I think he understands he just hasn't given up hope.

Correct

I'm hoping that I'm not out of status until I'm declared out of status... Ie if I'm admitted with the correct status, I may be ok till adjudication at least?

That's interesting about the flight manifests. Does anyone know for sure if those are tracked or what is tracked? Either way, I'm not banking on my departure not being on record somewhere, it's just an interesting point on the arbitrariness of the procedures, since my AP was in fact approved after the departure.

Does anyone have an answer on the H1B eligibility? Do they count the time in H1B status or the time since the first H1B approval?

Thanks

Thought I would update the thread. I did in fact get my AP approved and went to document production right away, and I got an email saying they mailed it on the 21st. This was the day after my second phone call. I never emailed. They never signaled that they would expedite. They just quietly approved it.

I was hoping it would arrive by this Saturday, but now it looks like it will be Monday or later. Even though I told them I had plane tickets for Monday. I guess I can call it a half-success.

I would recommend to anyone in the same situation to call a few times, possibly get a follow-up email address and send in a copy of your airline tickets. Give them more time than I gave them. They tell you they only expedite for national security or humanitarian reasons, but behind the scenes they're more reasonable.

Hope that helps someone.

As grrreat has restated, I expedited the AP (successfully, thankfully, though it still delays my return), in order to attempt reentering with it, if a customs officer is less astute or decides to have mercy on me. Once I'm home, I can start working on resolving the case. I had zero way to return without this. I would have had to wait at least a month for an H with premium processing or such. Now I'm hoping to do that while in the country at least, if my AOS is not voided instantly. Once I have an H, I buy myself time to do another green card app if my AOS is voided in adjudication due to this exit. My company has changed during the process (mostly in name), but that may disqualify me from just redoing the AOS in this case, and force me to start another gc process from scratch. But I can not be outside the country for months or years. My work and my life are not set up that way. I'm a Canadian citizen, but my entire life is in the US.

Note also that I've been working in the US for 7 years. I got my first H1B 6 years ago. But I only held H visas for 2-3 years. I've been using APs since then. Does this mean I'm still eligible for H or not?

Note also, that the airline did not take my I-94 when I left the country. Does that mean USCIS doesn't actually have a record of my departure? Do they look through my passport again in AOS adjudication?

I guess I apologize for asking a nonstandard question. But restating the obvious is not what I was asking for, rather alternatives, or similar experiences. If you're only gonna restate what I stated in my original post, why waste your breath?

Thanks

I called again, and they finally told me they are now processing APs with Feb. 16 receipt dates. Which makes me pretty screwed. They also gave me a followup email address for the nebraska office and told me to send in my story and flight tickets as evidence. Might help someone in the future. Note that this was my second call after the expedite request, and I was transferred to a second person, because the first couldn't give me this email address.

Yes, I am aware. I am working with an attorney, whom I've had from the beginning (only reason this happened is that my company marginalized her at this stage in the process and tried to keep the case going by themselves). I'm just looking for outside ideas, because she doesn't see many good options either.

Is anyone else seeing very long lead times for advance paroles? About how long till you get the AP in the mail?

I don't remember previous APs taking this long.

I called USCIS and asked for an expedite based on having flight tickets for June 25th, and asked for a status update. They replied with an email that says nothing:

"Type of service requested:

-- Expedite

The status of this service request is:

Your case is currently under review. You should receive a decision or notice of other action within 60 days of the date of this letter."

What else can I do? The three months was up on June 13th. It is now a week later. I need to fly in 5 days. Has anyone found any effective methods? Can I ask for a supervisor, like at a normal business, if I can't get anywhere with the drone?

Thanks

Now, inadmissibility under that section can be waived by the Attorney-General for adjustment applicants (usually by issuance of advance parole).

But advance parole can only be issued if I'm in the country, correct? You don't mean there's another way to obtain a waiver?

Someone said something about calling your local congress member, though I don't know what to understand by that either...

Thanks for the answers. This was my understanding as well. I was hoping someone had experience with this sort of situation, and whether there is an appeal process. I've read about similar situations where someone was paroled in regardless of the invalid AP, which then gave the person the chance to appear before an immigration judge. No word on the results of such an encounter

To clarify, I don't have a valid H1B any more, I have been using paroles for many years.

Thanks

Hi. I made the mistake of leaving without an approved AP, and I'd like to hear any experiences on how to straighten out the situation.

I have an Adjustment of Status pending. Should come current around January. I was on H1b before. I have had many AP's in the past, but my last one expired in January. USCIS received my new I131 application on March 13th. I only realized the night before my flight that my last AP was expired. I thought I'd get my AP eventually, get it sent to Europe, then come back with it, even if slightly late. I couldn't even imagine that the act of leaving the country without a valid AP automatically voids the AOS. Now I know. Though I still have no idea what the rationale may be. Does anyone know?

My return ticket is June 25th. I should be able to get the AP paper in the mail before then, if they really process applications in 90 days.

The airline person did not take my I94 out of my passport. This has happened to me many times before, and I only received a scolding from the immigration officer upon return. Not sure what this means in terms of my departure record.

What are my options right now?

Is there ANY way I can keep my AOS in effect at this point and not give up my priority date? I've heard it is up to the officer's discretion to enforce the technicality of the departure date. I had a good experience once when I lost my passport and AP, the officer let me in with a temporary passport and a photocopy of the AP. Alternatively, would I be going before an immigration judge? Can the invalidation of AOS be appealed? I'm obviously working in the US, and can't even consider lengthy paperwork while waiting outside the country.

I'd appreciate any advice, especially based on experience. Thanks!