F1, AOS, Marriage to US Citizen

F

FCBarca

Registered Users (C)
Hi

I had a couple of questions about filing for AOS for my wife (I am a US Citizen)...We're filing ourselves but came across a few questions/hurdles that we sought some guidance on...Any help would be greatly appreciated.


We're filing:

I-485
I-130
I-693
G-325A
I-864



My wife has been studying here in the US regularly on her F1 visa and returns to Switzerland about once a year (Updating her I-94).

First question, we plan to visit Switzerland this summer and we are currently hoping to have our AOS application in before the July 29th deadline for fee raises but will be in overseas during the initial phase of the process...Upon returning to the US, what happens with her F1 visa?...Are there some changes that need to be made?...Her I-94?...Is there something adiditonal we should file since she will be undergoing an AOS?

Second question, in Part 2 of the I-485 form it asks for 'Application Type'...Would our situation warrant selection b) my spouse or parent applied for adjustment of status or h) Other basis of eligibility?...Wording was slightly confusing.


Thanks
 
FCBarca said:
Upon returning to the US, what happens with her F1 visa?...Are there some changes that need to be made?...Her I-94?...Is there something adiditonal we should file since she will be undergoing an AOS?
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If she attempts to return on her F-1 after the I-485, the CBP officer at the airport will most likely send her straight back on a plane to Switzerland. It is critical that you file an I-131 with her I-485 and that she does not leave the US until th AP is approved.
 
And I take it that the I-131 is something that takes some time to get an approval on?

We had been planning to go back overseas very soon (Before the July 30th rate increase) and had planned to file this week.

Is it then unlikely to file now and simply wait until we get back to do so?

My other question was, if we return in a couple of weeks from our trip overseas, would it register that quickly within the system (In all likelihood?) that her F-1 would be null/void?

Thanks
 
Plus, she's Swiss....So couldn't she simply come in on a tourist visa for up to 3 months anyway, without the I-131 while the AOS is pending?
 
As soon as she has filed for AOS (I-485) all forms of non-immigrant visa become null/void.

If she files for AOS, she can NOT leave the country without an Advance Parole Document (I-131) approved for her. If she does the petition for AOS will be denied and she will not be allowed to re-enter the US.

I-131 takes from 60-90 days to be approved. Even though mine took only 28 days! :D... so the best for you guys is to file before the 30th of July and wait until her Advance Parole is approved before traveling or File after your trip and pay the additional cost.

Do NOT leave the country without an Advance Parole after she has filed for Adjustment of Status.
 
The correct answer is always "a"!

... about the travel issue, I agree with what's been said so far. The I-485 application clearly states:

Your departure from the United States (including brief visits to Canada or Mexico) constitutes an abandonment of your adjustment of status application, unless you are granted permission to depart and you are inspected upon your return to the United States. Such permission to travel is called ''advance parole.''

Exceptions listed are for certain dual intent visas and F-1 is not one of them.

I think your question was if she can enter under the "visa waiver program" (VWP) for three months ... oddly enough, it does say that there is an exception that someone admitted under VWP is eligible for AOS if they are an immediate relative of a USC. :confused: I would still think the pending application could be considered abandoned upon her initial departure. Anybody?

I think it would be safest for you if you hold off with filing until you return. I'm guessing you can only go to Switzerland until her new semester starts again, and you won't get AP before that. If you leave for more than perhaps 3-4 weeks after the initial filing you might miss important steps such as the fingerprinting appointment.
 
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FCBarca, curious, does your wife eventually plan on giving up her Swiss citizenship and get US citizenship? I've had a discussion about this recently with my wife's former high school teacher (a Swiss lady, she's been here for a long time but still Swiss citizen) ... at this point I don't plan on giving up Austrian citizenship either unless I can have dual citizenship.
 
austriacus said:
FCBarca, curious, does your wife eventually plan on giving up her Swiss citizenship and get US citizenship? I've had a discussion about this recently with my wife's former high school teacher (a Swiss lady, she's been here for a long time but still Swiss citizen) ... at this point I don't plan on giving up Austrian citizenship either unless I can have dual citizenship.
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austriacus said:
FCBarca, curious, does your wife eventually plan on giving up her Swiss citizenship and get US citizenship? I've had a discussion about this recently with my wife's former high school teacher (a Swiss lady, she's been here for a long time but still Swiss citizen) ... at this point I don't plan on giving up Austrian citizenship either unless I can have dual citizenship.
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As it turns out, she really doesn't have any true desire to attain a US Citizenship...at least now in the near future.

Between the two of us, I think the more likely scenario is for me to gain a Swiss citizenship...It's a good bet that in the not too distant future, we'll be retiring back in Suisse.

But back to the original question, am I oversimplifying things but can't she simply enter the US as a Swiss citizen without the need for a visa and remain for 3 months anyway?...If we file a I-131 at the time of the 485 filing, the AP should be approved some time during that period.

As ticket prices are ridiculous during the summer, we bought our tickets some time ago already.
 
I find nothing pointing that she can come under the VWP back to the USA.

The only exceptions noted on the form I-131 are people with certain immigration visa (non visitors) with a pending I-485.

From my interpretation, if your spouse leaves with a pending I-485, and tries to come back as a Swiss citizen, she will probably be allowed back in, but her I-485 will be denied at the time of the interview. I advice to proceed with caution and contact an immigration lawyer.

Also look at this website: http://www.hooyou.com/advanceparole/index.html
 
PraetorianXI said:
As soon as she has filed for AOS (I-485) all forms of non-immigrant visa become null/void.
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This is completely incorrect. Dual intent visas such as H/L are explicitly protected by the INA, and therefore cannot be revoked for immigrant intent. Additionally, holders of said visas (or Canadians eligible to return to the US in said status) do not need AP to return to the US after an I-485 has been filed.

Other non-immigrant visas may become effectively useless becuase of demonstrated immigrant intent, but they still remain valid and if the adjustment is denied/withdrawn and the alien can demonstrate non-immigrant intent, they can still be used for re-entry. The only two things that automatically cancel a visa are becoming a permanent resident and an overstay - and the latter only happens because the INA was explicitly amended to make this happen.

But back to the original question, am I oversimplifying things but can't she simply enter the US as a Swiss citizen without the need for a visa and remain for 3 months anyway?
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One of the conditions of the VWP is non-immigrant intent, and therefore she is equally incapable of re-entering on the VWP as she is using her F-1. Wait for AP.
 
Thanks from bringing light to this issue, that is what I was thinking.

So, she can not leave the US without an Advance Parole. Period.

If she does, her AOS will be denied and will likely not be allowed to return to the US.

Change your plane tickets, it is cheaper than buying new tickets.
 
Just used InfoPass from USCIS site to schedule an appt to speak with an Immigration Officer to go over this.

I spoke to a rep from the USCIS main contact number and confirmed what most of you have said regarding the F-1 and I-485 filing problems for my wife...She did mention that we could simultaneously file the I-131 and have it available to us at the US Consulate in Switzerland for our return but no way to insure when that would take place (Not likely to happen before we return to the US).

I posed a 'scenario' under which she could return to the US simply on her Swiss passport with a tourist visa while we waited for the AP on our I-131 filing...Unfortunately, she said she wasn't in a position to answer 'scenarios'...Hoping that perhaps the Immigration officer might...If not, I have an appt with an atty on Wednesday afternoon to discuss options.

Right now, after droppping about $3,000 on tickets, changing the tickets are not really an option...As such, the fees for filing for AOS will go up by around $780...Looks like we might simply eat the $780 and file after we get back from Suisse....Crazy...But, we'll see, perhaps there is another option.

Thanks for the help so far.
 
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FCBarca said:
I posed a 'scenario' under which she could return to the US simply on her Swiss passport with a tourist visa while we waited for the AP on our I-131 filing...
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There are a number of problems with this scenario:

1) The most likely possibility is that the immigration officer at the airport notices the filed I-485, and ships her back to Switzerland on the spot.

2) By leaving the US without AP or an H/L visa, you are allowing USCIS to consider her I-485 as abandoned. The POE can inform USCIS when they ship your wife back to Switzerland that she has been denied entry under VWP, and USCIS may immediately deny the adjustment based on abandonment.

3) Even if she makes it back, at your interview when you present the examiner her latest green I-94W, if he or she notices that it was issued after the I-485 was filed, the I-485 can be denied on the spot.

4) If she makes it back, the examiner may question whether a material misrepresentation took place at the initial entry, since under the VWP one cannot have immigrant intent.

If you've spent $3,000 on two tickets, you can spend a hundred bucks or so to get them changed.
 
and next time you will take immigration issues seriously and you will do research first, and then you will buy tickets for $3,000. When you are relatively sure that your wife will be able to return using them.
 
I think what the OP did is ok as far as buying tickets, at least they don't have their forms filed yet. (If they had the forms filed and had tickets, it would be a bigger mess.)

OP, if I were you, I'd look into whatever is the cheaper option - changing tickets or eating the cost of the filing fee increase. If your wife would need EAD and AP the fee increase wouldn't be that bad, because they are now included w/ the I-485 fee (but it looks like she won't need either?).

Of course, if you have made specific plans in Switzerland already or your vacation/your wife's vacation is constrained to specific times, you might want to consider that too. Also, once you start the AOS process, things can happen fairly quickly (bio appointment after ~ 1 month, interview appointment after 3-4 months) and you might find that it will become difficult to predict when you can take your vacation. (Your AP can come in at approximately the same time as when you have your interview, or get your interview notice, and you don't want to miss your interview date or even have to reschedule it!) So on balance, my guess is that you're better off enjoying your vacation now and delving into the AOS process when you return... or is there a compelling reason why your wife would want her GC sooner rather than later?
 
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Something that has not been pointed out here... It may not apply to her case, but I wondering if her coming back on her F-1 visa or VWP... and filing for AOS right away... would not that be a problem? (30-60-90)?
 
Good point, Praetorian! ... in fact, in my understanding, it might be difficult for her to to get an F-1 visa as a spouse of a USC, but she already has a valid multiple-entry visa, correct? Does the fact that she's been in F-1 status for years affect the 30-60-90 rule? (My guess is, it does not, since she still needs non-immigrant intent to re-enter.)

So looks like either they should put their vacation off until after AP is received and they know their ID, or wait to start AOS until November time frame? My guess is delaying the AOS is the smaller headache, if she plans to continue to study and doesn't need any of the LPR benefits such as being able to work or do nothing. Does it affect her tuition rate maybe (international vs. in state)?
 
In State vs Out of State tuition is usually a several thousand dollars! :eek:

Advice, file for AOS and AP and put off your vacation. It is better to be safe than sorry. :rolleyes:
 
FCBarca said:
Right now, after droppping about $3,000 on tickets, changing the tickets are not really an option...As such, the fees for filing for AOS will go up by around $780...Looks like we might simply eat the $780 and file after we get back from Suisse....Crazy...But, we'll see, perhaps there is another option.

Thanks for the help so far.
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Yeap $780 is cheap change esp for an FC Barcelona fan :p
 
austriacus said:
I think what the OP did is ok as far as buying tickets, at least they don't have their forms filed yet. (If they had the forms filed and had tickets, it would be a bigger mess.)

OP, if I were you, I'd look into whatever is the cheaper option - changing tickets or eating the cost of the filing fee increase. If your wife would need EAD and AP the fee increase wouldn't be that bad, because they are now included w/ the I-485 fee (but it looks like she won't need either?).

Of course, if you have made specific plans in Switzerland already or your vacation/your wife's vacation is constrained to specific times, you might want to consider that too. Also, once you start the AOS process, things can happen fairly quickly (bio appointment after ~ 1 month, interview appointment after 3-4 months) and you might find that it will become difficult to predict when you can take your vacation. (Your AP can come in at approximately the same time as when you have your interview, or get your interview notice, and you don't want to miss your interview date or even have to reschedule it!) So on balance, my guess is that you're better off enjoying your vacation now and delving into the AOS process when you return... or is there a compelling reason why your wife would want her GC sooner rather than later?
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And at the end of the day, that's the thing...At this point, the fee increase on July 30, 2007 will be less than the airline tickets...Went through a agency that doesn't have very reasonable change fees...Nevermind that rearranging vacation time from my work would make the immigration paperwork pale by comparison.

I haven't filed yet so it seems that worst case scenario would be to simply eat the rate increase and file once we return.

Perhaps the understatement of the year but this process just seems ludicrous, IMHO.
 
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