Applying for I-130, when the wife is on F-1

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koiadmi

Registered Users (C)
My Canadian citizen wife is on B2 visa, that will expire Jan 2011.

In order to apply for I-130, I want to keep her to join some school, and turn her status to F-1. After that, I want to apply for I-130.

I heard you can't do this when she is on F-1, because F-1 and B2 are nonimmigrant visas. Is this true?

Whats the best route to apply for I-130, and keep her here, until I-130 and I485 are approved?

Thanks
 
koiadmi said:
In order to apply for I-130, I want to keep her to join some school, and turn her status to F-1.
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She cannot switch from B to F within the US unless she declared her intention to do so at the POE and an I-94 is annotated with this.

I heard you can't do this when she is on F-1, because F-1 and B2 are nonimmigrant visas. Is this true?
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Not true, but it's likely she will be denied re-entry to the US in F status once the I-130 is filed. Are you a US citizen?
 
Thanks for your prompt reply.

I am LPR.

My intention is to get I-20 for her and then take her to border, and from there, she will enter based on I-20. After that, I intend to file I-130, and keep her on F-1 as long as it takes.

Can she first try to enter on B2? And if denied, then on I-20? She dos not want to go to School here :)

Can u apply for I-130 while on B2?

Thanks
 
koiadmi said:
Can u apply for I-130 while on B2?
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I-130 can be applied for and approved while the prospective immigrant is inside the US in any status, or outside the US. It's the next step (I-485) and international travel where the status becomes highly important.

If you're going to file the I-130 while she is in the US on a B2 visa, you should select consular processing on the I-130 so the immigrant intent aspect won't be an issue. Being the spouse of an LPR, if she files for AOS after shortly after entering with a B2, she won't be granted the leniency on the immigrant intent issue that is granted to spouses of US citizens.

For similar reasons, consular processing is also advised if you're going to file the I-130 shortly after she enters in F1 status.
 
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Jackolantern said:
I-130 can be applied for and approved while the prospective immigrant is inside the US in any status, or outside the US. It's the next step (I-485) and international travel where the status becomes highly important.

If you're going to file the I-130 while she is in the US on a B2 visa, you should select consular processing on the I-130 so the immigrant intent aspect won't be an issue. Being the spouse of an LPR, if she files for AOS after shortly after entering with a B2, she won't be granted the leniency on the immigrant intent issue that is granted to spouses of US citizens.

For similar reasons, consular processing is also advised if you're going to file the I-130 shortly after she enters in F1 status.
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Hey, thanks for ur feedback.

So what do u suggest? My lawyer wants me to first get my wife to F-1, and then apply for I-130 inside US (I mean no counselor processing). According to her, u will be taking chances if she gets denied visa at the POE.

In my current plan, once she gets the F-1 status, she will continue to remain in the US, and hopefully by end of 2011, she will no longer F-1 status.

BTW, at what point do u have the legal status in the US without any F-1 or B2 visa? After I-485 is applied?

Thanks
 
koiadmi said:
So what do u suggest? My lawyer wants me to first get my wife to F-1, and then apply for I-130 inside US (I mean no counselor processing).
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Yes, have her enter with the F1, and then file the I-130. But the I-130 should specify consular processing.

If you don't specify consular processing, you have to battle the immigrant intent issue. Look at your planned scenario ... she is married to a green card holder, enters the US with an F1, then a few days or weeks after her entry with the F1, an I-130 is filed specifying AOS. You expect the interviewer to believe she didn't enter with immigrant intent? Remember, the actual fact is that there is immigrant intent! If you were a USC, they would usually overlook the immigrant intent issue, but you are not a USC. So use consular processing, which will automatically remove the immigrant intent issue from the interview.

BTW, at what point do u have the legal status in the US without any F-1 or B2 visa? After I-485 is applied?
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Yes.
 
Note that on the F-1 application she'll have to mention the fact that she has a permanent resident spouse. So she probably won't get the F1 approved, unless she can convince the consulate that if and when she pursues the green card it will only be through a consulate in Canada and not inside the US.
 
Jackolantern said:
Note that on the F-1 application she'll have to mention the fact that she has a permanent resident spouse. So she probably won't get the F1 approved, unless she can convince the consulate that if and when she pursues the green card it will only be through a consulate in Canada and not inside the US.
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Since she's a Canadian citizen, there'll be no DS-156 for the F-1, and no visa. Is there anywhere on the I-20 where she'd have to disclose this?
 
TheRealCanadian said:
Since she's a Canadian citizen, there'll be no DS-156 for the F-1, and no visa.
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There isn't? Do Canadians have to file DS-156 when applying for any kind of nonimmigrant status at a consulate or port of entry?

Is there anywhere on the I-20 where she'd have to disclose this?
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Do Canadian F-1 applicants have to show proof of funding to the POE officer, like what non-Canadians have to do when applying for F1 at a consulate? If yes, and the LPR spouse is the source of funding, that's an obvious disclosing of the relationship.
 
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Jackolantern said:
There isn't? Do Canadians have to file DS-156 when applying for any kind of nonimmigrant status at a consulate or port of entry?
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I've never filled out a DS-156 in my life. The only reason one would need to do so is if one required a non-immigrant visa, and Canadians are statutorily exempted from needing a visa for almost all non-immigrant statuses except E and K. The vast majority of Canadians don't even fill out an I-94 (and those that do, think it's a visa). So not only have I never filled out a DS-156, I've never set foot within a US consulate or embassy in my life.

Do Canadian F-1 applicants have to show proof of funding to the POE officer, like what non-Canadians have to do when applying for F1 at a consulate? If yes, and the LPR spouse is the source of funding, that's an obvious disclosing of the relationship.
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An interesting question. Hopefully a Canadian who's studied in the US might be able to chime in.
 
Guys,

Thanks for your inputs.

BTW, as I mentioned before. She is not my wife, in the US. I will legally marry my spouse, only after she enters the US on F1. Our marriage took place outside the US, and I have not disclosed it to any US govt institute. She is just on my spousal medical benefits plan. Thats it.


Also, as my lawyer suggested, the source of I-20 funding will be someone else (her uncle) outside the US, not me (even though I will pay for it, at the end of the day)

I am interested in knowing what questions are asked of Candians entering in the US on I-20. I want her to be prepared for all these questions

Thanks


Thanks
 
koiadmi said:
She is not my wife, in the US. I will legally marry my spouse, only after she enters the US on F1. Our marriage took place outside the US, and I have not disclosed it to any US govt institute. She is just on my spousal medical benefits plan. Thats it.
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if you got married and she's on your spousal benefits plan, she's your wife. Stop playing games with the US government; the penalties for both of you if they discover this little subterfuge can be considerable.
 
K,

Why do want to take a simple case and complicate it by misleading US govt? Foreign marriage is recognized in the US, provided you have legal documentation that USCIS can evaluate and find that you two are husband and wife. Just make sure you know what you are doing, because you end up with a big goose egg on your face...
 
Hmm.....its because she entered in teh US on visit visa (B2). I am LPR. It takes years for her to enter the US on my sponsorship. The original plan was to keep her cross borders every 6 months (or get her on F-1) until I become citizen.

Its just now it takes 5 months for LPR to sponsor spouse.
 
koiadmi said:
Hmm.....its because she entered in teh US on visit visa (B2). I am LPR. It takes years for her to enter the US on my sponsorship. The original plan was to keep her cross borders every 6 months (or get her on F-1) until I become citizen.

Its just now it takes 5 months for LPR to sponsor spouse.
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When did she get this B visa? Before your foreign marriage or after that marriage? Let us forget your plan to marry again here in the US. Remember that misleading US consular officers could have huge implications for both of you, specifically for her as she will be one seeking a benefit. I believe that B visa form require or ask people to disclose their marital status and if they have any relatives in the US, could be wrong, but lying hasn't proven to be popular with US govt officials.
 
koiadmi said:
BTW, as I mentioned before. She is not my wife, in the US. I will legally marry my spouse, only after she enters the US on F1. Our marriage took place outside the US, and I have not disclosed it to any US govt institute.
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Was that marriage purely ceremonial, with no legal record of it in the country where it occurred? If that's true, then you're defrauding your employer by claiming spousal benefits, unless the employer also recognizes common-law or domestic partnerships as being equivalent to marriage for benefits purposes.

But if it was recorded by the authorities in the country where it occurred, that means you're legally married as far as the US is concerned.
 
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Al Southner said:
When did she get this B visa? Before your foreign marriage or after that marriage? Let us forget your plan to marry again here in the US. Remember that misleading US consular officers could have huge implications for both of you, specifically for her as she will be one seeking a benefit. I believe that B visa form require or ask people to disclose their marital status and if they have any relatives in the US, could be wrong, but lying hasn't proven to be popular with US govt officials.
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She's Canadian - she has no visa.
 
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