GC married to an F-1

[sun_77]

I have a GC. I recently (6 months ago) got married to an F-1 visa holder.

It has been almost 3 years since I got my Green Card.

My wife has one more year of Studies and then she will get one year
of Practical training (OPT/EAD). So, she can maintain visa status on her
own for another two years.

I am wondering about whether I should file for her GC (on family quota)
now or wait till I get citizenship (2 to 3 years from now).

I am not sure how long does the application takes to get processed if
I file on family quota.

Also, If I file on family quota now, can I change the application when I
get my citizenship.

What is the procedure for Green card filing for my wife once I get citizenship.
How long does it take normally. There is something called Fiance visa right,
Does that apply to Wife also.

Also, I heard that there is a new bill that helps GC holders to get some visa
(like fiance) for their spouses. Any body knows about this ?

Please advice. I really appreciate your help.

Cheers
Sun

[GeorgeF]

You can file I-130 now. You are correct, there is a backlog of several years for spouses of GC holders due to a limited visa availability (you mentioned the family quota). However, once you become a US Citizen, you can "upgrade" this application and a visa for your spouse will be immediately available. (not subject to the quota anyore)
There are couple of advantages when filing I-130 immediately.
First, it will get your wife in the queue, should there be any unforeseen delays with your citizenship. (hope not)
The other advantage leads to your second question....
Yes, congress once passed a law establishing V-visa for spouses of permanent residents. (that's probably what you heard), who had I-130 filed of at least 3 years but there were some limits for marriage dates back in 2000 or 2001. Since you got married only 6 months ago this will not apply to you. However, there are rumours about this law being extended or similar law being passed. If that happens, you will have your I-130 on file.

The possible drawback.
F-1 is not a dual intent visa, meaning that a holder has no intent to immigrate. I'm not sure how would an imm officer look at someone entering the US on F-1 and having I-130 pending at the same time.

So yeah, that's how I see it. If I were you I would at least consult with an experienced attorney and also see what other people will say here on this forum. Best of luck!

[sun_77]

Thank you very much for the advice.

If I file for family based immigration petetion now, the only problem
is the travel (I think she can not travel) because of Potential
immigration problem (Being on F-1 and also I-130 filed on her name).

Once I get my Citizenship, Is it really just 2-4 months for to get
an EAD once I file for her green card application ?

Does anybody know a good lawyer in bayarea. I live in santa clara.

I would like to consult a lawyer on how should I proceed.

Also, I wait for other experienced member's advice.

Thanks
Sun

[romit]

I was/am in exact situation.

I got married in 1999 and my wife was on F-1. I filed for her I-130 in 2000. she never travelled since then. she was able take advantage of V-1 in 2003. I became citizen this year and immediately applied for her AOS in San Jose office. within a month she got EAD.

Hope this helps.

[romit]

oh, I did all these by myself.

[sun_77]

Great. Thanks Romit. Its great to see things worked out pretty
nicely for this kind of case.

Filing for I-130 (family quota) for your wife did not really help
right. She got EAD only after you upgraded her application once
you got your citizenship.

Also, how do we upgrade the application ? Just file for another
I-130 after getting the citizenship.

what do you recommend. Should I file for her I-130 on a family
quota or just wait for two more years for my citizenship.

I got my gc in Sep'01. So, it has been almost 3 years since then.
How long will it take from now to get my citizenship ?

I guess Its better for my wife to not travel outside US if I file
for her I-130 (family quota).

Thanks
Sun

[GeorgeF]

I guess Its better for my wife to not travel outside US if I file
for her I-130 (family quota).
Thanks
Sun

I'm not sure if this is really a problem. In theory it could be.

[sun_77]

That's true.

The problem comes when the Immigration Officer at the Port of Entry
comes to know that my wife is on F-1 and she had filed for I-130. he
might reject her entry on the issue of Dual Intent or Potential Immigration.

How will the immigration officer come know about I-130 application on
behalf of my wife ? Is there any collective database that INS maintains.
With this Homelan Secuirity dept. they might be keeping a detailed
database of all Immigrants (especially the F-1 folks)

Sun

[GeorgeF]

That's true.

The problem comes when the Immigration Officer at the Port of Entry
comes to know that my wife is on F-1 and she had filed for I-130. he
might reject her entry on the issue of Dual Intent or Potential Immigration.

How will the immigration officer come know about I-130 application on
behalf of my wife ? Is there any collective database that INS maintains.
With this Homelan Secuirity dept. they might be keeping a detailed
database of all Immigrants (especially the F-1 folks)

Sun

Well, first of all there's the SEVIS system for students. But that's already obvious, since she would be presenting herself with an F-1 (I-20). How is the officer going to find out about I-130 pending? Well, you never know what these guys know.
I don't want to play devils advocate or anything, but in theory, he could simply ask. The person could panic and deny it, which could then later be brought up as lying to an immigration officer, which may result in permanent inadmissibility.

As I said, I’m not sure if having I-130 pending and F-1 really is a problem. But if it is, it’s better be to be safe than sorry. My $0.02

[romit]

That's why we did not take any risk. we stayed together as a family and never travelled outside of USA during these 5 years. Things are working out good now.

For Sun: I applied for my citizenship exactly at 4 years and 9 months after I got my GC (date that is printed on GC). it about a year to complete the process. when applied for my wife's AOS, I just explained that I-130 was applied as GC holder and now I am citizen, therefore my wife is eligible for AOS. if you don't apply for I-130 at this time, you have to apply for I-130 along with all others (I-485, I-765, etc.) during AOS for your wife.

Hope all these help.

[sun_77]

Thank you very much Romit.

So, If I do not apply for I-130 now (while I am on GC and she is on
F-1) will it take a long time if I file 130 after I get my citizenship or
is it the same amount of time.

If I file for I-130 now and let's say my wife is done with F-1 and OPT
can she stay here legally without being on H-1 etc.. until she gets
her GC (through family or after i get my citizenship).

Thanks
Sun

[romit]

Thank you very much Romit.

So, If I do not apply for I-130 now (while I am on GC and she is on
F-1) will it take a long time if I file 130 after I get my citizenship or
is it the same amount of time.

If I file for I-130 now and let's say my wife is done with F-1 and OPT
can she stay here legally without being on H-1 etc.. until she gets
her GC (through family or after i get my citizenship).

Thanks
Sun

I don't know the answer to the first part since I have no experience.

for the second part, I am not sure but I heard that as a citizen, your wife can apply for AOS even though she is illegal as long as she entered the country legally. However, if she stays more than 180 days illegally, then she should not leave the country until she becomes GC holder. It is better to check with an attorney on this.

[GeorgeF]

I don't know the answer to the first part since I have no experience.

for the second part, I am not sure but I heard that as a citizen, your wife can apply for AOS even though she is illegal as long as she entered the country legally. However, if she stays more than 180 days illegally, then she should not leave the country until she becomes GC holder. It is better to check with an attorney on this.

I concur to the above.

To answer your other questions....
I haven't heard about filing I-130 now delaying AOS when you the petitioner becomes Citizen. Even in Romit's case it didn't cause any delays.
Basically, if you decide to file I-130 after you become a citizen, you will then file it along with I-485 and the rest of the forms at one time and they will be processed at once. In other words, they will not process I-130, give you answer, then you file the rest... no.... it's all in one packet after you become USC.

Filing I-130 doesn't give your wife any immigration rights. It's barely a petition to request an immigrant visa. She will not get EAD based on it and it will not be a basis for any imm. status. She should maintain her legal status until you become citizen (ot until her I-130 is processed based on the quotas) after her F1 expires (switching to B2, H1 etc.). In case she falls out of status, she will be OK, after you become a citizen and she doesn't get caught in the mean time.
She will get EAD, AP etc. only after you are ready to file I-485, which is the actual application to adjust her status.

As far as the Citizenship timing goes.... it all depends. I assume you have been physically present and meet all the other requirements. Then you can apply 90 days prior to your 5 years as an LPR.
When I applied in May of 2003 they said the process should take about 6 months here in San Jose. It took about a year from the time I filed until I raised my right hand. So it all depends.
Good luck!

[sun_77]

Is it better to file I-130 now, what are the advantages. Is there
any time to process advantage that we are going get compared
to Filing I-130 along with everything else (485 etc.) after getting
my citizenship.

or is it just in case if I do not get a citizenship.

Thanks
Sun

[sun_77]

Thank you very much George and romit.

Its been 3 years since I got my green card. I guess I am looking at
3 more years to raise my right hand (best-case).

If I do not file for I-130 now, and my wife's visa expires (her status
becomes illegal) and she does not caught up in the mean time till i get
citizenship. Is she Ok even then or I-130 needs to be filed now for her to be
legal at the time of her AOS (after my citizenship).

[GeorgeF]

Thank you very much George and romit.

Its been 3 years since I got my green card. I guess I am looking at
3 more years to raise my right hand (best-case).

If I do not file for I-130 now, and my wife's visa expires (her status
becomes illegal) and she does not caught up in the mean time till i get
citizenship. Is she Ok even then or I-130 needs to be filed now for her to be
legal at the time of her AOS (after my citizenship).

As I mentioned, filing I-130 doesn't give your wife any imm status. If she falls out of status, having I-130 filed doensn't mean a lot.

I see 2 main possible advantages filing I-130 now:
It is possible, thoug not certain, that congress will pass some kind of law granting your wife some kind of status. They did it in the past and there's a such legislation pending. Again that doesn't mean it will get passed and the chances are it it won't. But just in case

The second possible advantage is that should there be any delay with your citizenship (hope not) filing it now would put your wife in the queue.

[sun_77]

Is there any advantage of getting into the queue now ? Meaning
filing I-130 now as far as the time line is concerned.

[sun_77]

Thanks george and romit.

I just want to clarify one thing. Applying I-130 now for my wife (getting
her into the queue) does it really help as far the timeline is concerned.

I mean does it buy us some time when I upgrade the application after getting
my citizenship.

I have two choices..
i) file I-130 now (get her into the queue) and upgrade the application after
getting citizenship.
ii) File I-130 and 485 only after getting my citizenship.

which one is faster ? (i) or (ii).

Thanks
Sun

[romit]

Thanks george and romit.

I just want to clarify one thing. Applying I-130 now for my wife (getting
her into the queue) does it really help as far the timeline is concerned.

I mean does it buy us some time when I upgrade the application after getting
my citizenship.

I have two choices..
i) file I-130 now (get her into the queue) and upgrade the application after
getting citizenship.
ii) File I-130 and 485 only after getting my citizenship.

which one is faster ? (i) or (ii).

Thanks
Sun

If it was me, I would do your number 1 choice because that's what I did and it is going smooth so far.

I don't know if one is faster other than the other but I thought George explained nicely in some previous post how filing I-130 would help you at this time.

Hope this helps.

[sun_77]

I agree that Filing I-130 now is a better choice.

But my wife would like to travel to India in the nexy year or so. So, It is
risky to file I-130 now (because of the issues we discussed).

She has another 2 and half years of f-1. If we consider that citizenship
process takes 1 year, then I should have my citizenship in another 3
years.

So, I am thinking we have 6 more months for her to maintain the status.
I guess that could be done through H-1.

Let me ask you one question. Is travel risky for her even now. I mean without
even filing for I-130. By the matter of fact that she got married to a
permanat resident (I am filing taxes as married). If they ask her @ the Port
of Entry whether she is willing to stay in US permanantly. what is she
supposed to say ? If she says NO and the immigration officer knows that
she got married to a Green card holder. then its considered as lying to
the officer right ?

Thanks
Sun

[romit]

if she came to USA as a student (F-1) and she has multiple entry visa, then I don't think it would be a problem to travel. My wife came with B-2 and then converted to F-1, that's why we did not take any chance at all.

[LucyMO]

basically, your wife risks not being able to come back on F-1 visa regardless of whether you filed I-130 or not, since she has an LPR spouse in the States. My friend went to Canada for a two day conference being a wife of USC, and I-130 wasn't filed for her, and she had the most difficult time getting back.

Another thing: you can file I-130 now, and when you become a citizen you can upgrade it, and your wife may choose to go through consular processing rather than AOS. Or upgrade it, and the priority date will be the same as when you applied for it, which is good. Then, once it's upgraded, your wife can apply for AOS.

Yet another thing, people on F-1 with D/S on their I-94 do not start accumulating illegal presence when they fall out of status. The illegal presense for them starts ticking only when an immigration or a consular officer makes an official determination that an F-1 student fell out of status. However, now with SEVIS, BCIS will know of a student falling out of status a lot quicker than in the past.

[sun_77]

Thanks for your help.

How did the Immigration officer come to know that she got married to an
USC even without filing any I-130 petition with the INS ?

So, the priority date will be when ever I file for her I-130 is it ? If so,
then filing I-130 now has an advantage in terms of time line compared
to filing I-130 & 485 after I get my citizenship. Am I getting right ?

Thanks
Sun

[LucyMO]

in terms of timing you do not win anything by filing I-130 now, unless you wife will go through consular processing, not AOS. If she goes through AOS, you still have to wait for the AOS, and that's what's taking so much time.

So, let's see:

you file I-130 now, and it gets approved and then you become a citizen and then your wife files for AOS. So, you count the time from the time she files for AOS, because that's when she aquires a new legal status, EAD and AP. By the way, in this case, you don't have to file a new I-130 with AOS, I-130 gets transferred from district office to the local office.


or:

You get citizenship, and then you file I-130 and I-485 at the same time. So, once again, you count from the time you file both applications, because that's when your wife aquires a new legal status, EAD and AP.

As you can see -- really, no benefit to filing I-130 early.

Now, if your wife goes through consular processing - you can file now. I-130 will get approved within a year or two, then you become a citizen and a visa number becomes immediately available to your wife, then your wife leaves and comes back on an immigrant visa. As to the exact procedures, you'll have to consult www.uscis.gov and www.travel.state.gov

[LucyMO]

Thanks for your help.

How did the Immigration officer come to know that she got married to an
USC even without filing any I-130 petition with the INS ?

I don't know. She said he search something for a long time on a computer, and then started asking questions about her being married to USC, and then turned her away and didn't let her get on the plane.

[sun_77]

Thank you very much LucyMO. your advice really helped.

I have decided to wait till I get my citizenship. then I will file for her
I -130, AOS. since i do not see any timeline benefit of filing I-130
now.

My worry is that if I file for her I-130 now, Immigration officer at
the port of entry will come to know for sure (as happened to your
friend) because its the same INS database. then she might have a
problem coming back into the country if she goes to india.

Even without filing I-130 now we can argue that she will still have a
problem coming back into US. But I think the risk is less. Immigration
officer can find out that she is married to gc holder if he can get
access to my IRS tax returns

She wants to go to India sometime later. its been 3 years since
I got my green card. so hopefully I will get my citizenship in
another 3 years.

she has f-1 (multiple entry) followed by OPT for another 2 and half
years.

for the rest of 6 months, if she gets a H-1 its well and good
otherwise she will stay here illegally. Once I file for her green
card application after my citizenship everything will settle down
and her status will become illegal I guess.

Thanks
Sun

[LucyMO]

that sounds good. good luck!