F1 OPT- getting married to a Green Card holder. Please help

L

lovelylady

Registered Users (C)
Hi Guys,

I am on F1 OPT valid till Jul 2011. My fiance is a US green card holder for 2 years now. We intend to get married next month. We have consulted a reputed immigration firm today regarding my AOS from F1 to GC. I am more confused after I met the attorney. Please clarify the following:

1. Soon after I am married I/my spouse can file for I-130 and wait for approval.

2. When the date for family based GCs becomes current, we are allowed to file I-485 if I-130 was approved.

3. From the time of I-130 filing to I-485 filing, I got to maintain my F1 OPT status.

OR

From the time of I-30 filing to I-485 APPROVAL, I got to maintain my F1 OPT status.

4. The attorney said that I have to request for a consular processing as I am on F1 which means I need to go back to the consulate in my home country to get my green card.

5. Will my OPT extension application under the STEM be affected if I apply for
I-130 before Mar 2011 ?

6. Will my H1-B application be affected if I file I-130 ?

OR

7. The best way is to file for Opt Extension in Mar 2011 and then apply for I-130 ? In this case, I may not be able to make use of the current faster current dates ...

PLEASE VOICE YOUR OPINION to HELP me and my fiance MAKE a DECISION.:confused:
 
Good news is that marrying a GC holder, wait time for that is reduced to a mere 10 months as per Oct visa bulletin, it's almost like marrying a US Citizen which takes about 4 to 6 months to adjust status. With this kind of a short wait time you might just adjust within your one year OPT.
 
1. Soon after I am married I/my spouse can file for I-130 and wait for approval.

2. When the date for family based GCs becomes current, we are allowed to file I-485 if I-130 was approved.

3. From the time of I-130 filing to I-485 filing, I got to maintain my F1 OPT status.
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yes


4. The attorney said that I have to request for a consular processing as I am on F1 which means I need to go back to the consulate in my home country to get my green card.
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don't need to.

5. Will my OPT extension application under the STEM be affected if I apply for
I-130 before Mar 2011 ?
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it may be affected. I'd file I-130 asap and, perhaps, it'll be current in no time.

6. Will my H1-B application be affected if I file I-130 ?
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no, because H1b is a dual intent visa.

7. The best way is to file for Opt Extension in Mar 2011 and then apply for I-130 ? In this case, I may not be able to make use of the current faster current dates ...
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best not to wait that long. File right after marriage.
 
Thank You very much namecheckvictim and LucyMO. Your answers helped me make a decision peacefully. We didn't get these direct answers in our consultation with the attorney. Instead, the person was trying to sell herself for filing I-130 which would be sometime next month.
 
Note that once USCIS knows about your marriage to a green card holder, whether they find out through the I-130 or other means, you may be unable to reenter the US with your F1 visa or extend your OPT.
 
Jackolantern,

I asked the attorney if my OPT extension would be denied. I am badly in need of this to continue staying here with my husband if I am married.

Yes filing I-130 with the USCIS will make it known that I am married to a GC holder and filing for OPT extension.

She said: My OPT extension request under STEM will not be denied. Or another way - If I have an I-20 by registering for higher studies, my legal will be maintained.

She said that there are no well defined rules to state that the OPT extension would be rejected because of my marriage with a green card holder.

She suggested me not to travel out of country and try to re-enter US on F1 after I-130 is filed.
 
lovelylady said:
She said: My OPT extension request under STEM will not be denied. Or another way - If I have an I-20 by registering for higher studies, my legal will be maintained.
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She said that there are no well defined rules to state that the OPT extension would be rejected because of my marriage with a green card holder.[/quote]
Well, they do seem to be more lenient towards F-1 students already in the US who seek to extend their status, than with those who are outside and applying for a visa or attempting to reenter.

And even if it is rejected, it's not the end of the world; if you can't file I-485 before July 2011, you should be able to return to the US later in 2011 with an immigrant visa.

Just make sure to select consular processing on question 22 of the I-130, so there won't be a delay in moving the case to the consulate which could make you have to wait longer outside the US. If the visa bulletin movement ultimately allows you to file the I-485 while you are in the US legally, you can simply go ahead and file the I-485 and they will transfer the case from the consulate back to USCIS locally.
 
Jackolantern,

Thanks for the confirmation. Yes, I HAVE to Choose Consular Processing in I-130 because of my F1 visa which is not a dual intent visa. I have the following questions to understand the process better and plan accordingly:

If my OPT ends in July 2011 and I am not given an extension as the USCIS knows that I have filed I-130, will I be able to extend my stay on F1 with I-20 from another school and enrolling for higher studies? Is this considered legal status ?

What does "Not choosing" consular processing in I-130 mean ? I intend to violate the F1 law/ regulation or what ?

What if I continue to stay in US with OPT extension and file I-485 in the US ? Does Consular Processing affect me ?

I know that if my H1B is approved, I can request for a change from the Consular processing to USCIS processing.

All that I understood out of the discussion and the attorney's suggestion was " To leave for the home country if F1 status cannot be maintained, have the consular processing done and come back as an immigrant. In any case, it is best NOT to be 'OUT OF STATUS' and overstay on my visa as my fiance/husband will not be a US citizen up to next 3 years"

Looking forward your response.

Thanks
 
You don't HAVE to choose consular processing because of your F1. They don't have a problem with long-time F1 students filing the I-485. In your case, the advantage of consular processing is for different reasons:

1. You want the option to extend your OPT after July 2011. If you choose adjustment of status on the I-130, it might be more difficult to get the extension.

2. If your extension is rejected and you have to leave the US after July 2011, you would then have to pursue consular processing outside the US. If consular processing was NOT selected on the I-130, your spouse would have to file I-824 to move it to the consulate. There is a fee for the I-824, plus it will take a few weeks to a few months to process it. So that means more money to spend, and more time waiting outside the US before the consulate is ready to interview you. Whereas if consular processing was originally selected, they would automatically send the case to the consulate without the delay or fee of the I-824.

H1B approval is neither necessary nor sufficient for you to switch it from consular processing to adjustment of status. You can file the I-485 if they cross your priority date while you are still on F1/OPT. There might be some delay for the I-485 interview if they have already transferred the case to the consulate and have to transfer it back to USCIS, but that delay wouldn't affect your ability to stay in the US legally.
 
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If my OPT ends in July 2011 and I am not given an extension as the USCIS knows that I have filed I-130, will I be able to extend my stay on F1 with I-20 from another school and enrolling for higher studies? Is this considered legal status ?
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yes, if successful, it would be a legal F-1 status.
 
lovelylady said:
If my OPT ends in July 2011 and I am not given an extension as the USCIS knows that I have filed I-130, will I be able to extend my stay on F1 with I-20 from another school and enrolling for higher studies?
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If they don't extend your OPT because of the I-130, they probably would also reject the F1 extension for the new school.

Is this considered legal status ?
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If they approved the F1 extension, you would be in legal status if you don't have a gap between the expiration of your existing status and the beginning of the next one with the new school.
 
Jackolantern said:
If they don't extend your OPT because of the I-130, they probably would also reject the F1 extension for the new school.

.
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How will the USCIS reject the F1 extension ? I have a valid visa, valid passport and if I have a valid I-20 for higher studies from a new school ? I thought they have the authority to reject the OPT extension but cannot forbid a new school from granting an admission and I enrolling.

This is where there are no well defined rules. I need to take it to my advantage.

I think LucyMO is correct.

Please let me know more on the rejection process if you know.

If my OPT ends in July '11, I have 60 days period to wrap up and leave the country while in status. By then if I have a new I-20 and my school begins in Fall '11 ( mid Aug '11 ) and I am enrolled, I am in status right ??
 
If my OPT ends in July '11, I have 60 days period to wrap up and leave the country while in status. By then if I have a new I-20 and my school begins in Fall '11 ( mid Aug '11 ) and I am enrolled, I am in status right ??
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yes.
 
lovelylady said:
How will the USCIS reject the F1 extension ? I have a valid visa, valid passport and if I have a valid I-20 for higher studies from a new school ? I thought they have the authority to reject the OPT extension but cannot forbid a new school from granting an admission and I enrolling.
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The new school has to communicate your details to USCIS when issuing the I-20, and they have to register you with SEVIS. USCIS can then tell them not to issue it.
 
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