F1 Status, OPT and filing for a green card: How do they interact?

[rhoerus]

F1 Status, OPT and filing for a green card, is there a potential conflict?

Hello,

I've been reading these forums for several months now and have greatly appreciated the information I've found here. I hope someone will have a few more answers for me as a result of this post.

Okay. I am a USC and my wife entered the US on a F1 student visa in June of 2005. We got engaged in December of that same year, and married in May of 2006. Her F1 was slated to run out in July of 06, and not knowing the laws as well as I do right now, we filed for her to get OPT in June of 06. She received her OPT and is currently in that status.

Now, we are looking to file the I-130/I-485 package to get her permanent residence status. And I've seen a lot of posting about dual intent and nonimmigrant status, and I'm looking to find out exactly how all of that might affect her getting permanent residency when we file for it in the very near future. Will her having gotten OPT after she was married be a problem? We know her International Student Advisor knew about our marriage, and said nothing about it being a problem, and neither was there any kind of problem getting the OPT.

Also, once we do file for her permanent residency, can she continue using her OPT? I'm aware that she cannot leave the country as her F1 status is.... disrupted? But I am unsure exactly how the Employment Authorization is affected by the filing, and I can't seem to find a straight answer for this anywhere else either....

Any help or advice anyone might have on this would be greatly appreciated.

Thanks!

 

[princesskate]

Now, we are looking to file the I-130/I-485 package to get her permanent residence status. And I've seen a lot of posting about dual intent and nonimmigrant status, and I'm looking to find out exactly how all of that might affect her getting permanent residency when we file for it in the very near future. Will her having gotten OPT after she was married be a problem?

I don't see any problem at all. Getting an OPT after getting married has nothing to do with your wife's AOS application.

Also, once we do file for her permanent residency, can she continue using her OPT?

I don't think so.
Once she files her AOS application, her status will be changed from F-1 to "pending AOS", since OPT is an authorized work period specially for F-1 students, your wife can't use it to work once her status gets changed to pending AOS. If she wants to work and travel, she'll need to apply for EAD (I-765) and Advanced Parole (I-131).

 

[rhoerus]

I don't see any problem at all. Getting an OPT after getting married has nothing to do with your wife's AOS application.

But wouldn't the fact that she was married at the time she filed for the OPT show an intent to immigrate, and thus put her out of status with her F1, since that is a nonimmigrant visa (ie dual intent)?

 

[princesskate]

But wouldn't the fact that she was married at the time she filed for the OPT show an intent to immigrate, and thus put her out of status with her F1, since that is a nonimmigrant visa (ie dual intent)?

Her marriage to a USC (you) doesn't mean that she has intention of immigrating to U.S. until she files an AOS application to USCIS. Her F-1 status wouldn't stop automatically once she married you.

I was also from F-1 to PR. In fact this is a very simple and common case as long as your wife didn't commit any crime (even if she overstays, it's still forgiven since she's a spouse of USC), so don't worry, just prepare enough paperwork then she'll be fine.

 

[rhoerus]

Ahh okay, so the law makes a distinction between marriage to a USC and filing AOS in terms of intent to immigrate. I guess I'd been seeing them as sort of the same thing...

Thanks so much for your advice, you've put my mind very much at ease.

 

[pianoplayer]

Ahh okay, so the law makes a distinction between marriage to a USC and filing AOS in terms of intent to immigrate. I guess I'd been seeing them as sort of the same thing...

Thanks so much for your advice, you've put my mind very much at ease.

You are exactly right. Just because someone marries a USC, does not in itself mean the person wants to immigrate ---- what if the USC wanted to move to the other person's country e.g.? Unfortunately, marriage to USC is a "suspicious factor" to point of entry officers, when someone enters on a nonimmigrant visa. This may be a practical problem, but as long as that person does not have intent to immigrate at that point, there is no legal problem. If someone enters with a nonimmigrant visa KNOWING that they want to marry someone immediately and immigrate, that is a problem.

In any event, this does not apply to your wife. The last time she entered the US, she came on a valid student visa and she did not intend to immigrate at that point. Now that you are married, and provided that she wants to become a permanent resident, you can file I130/I485. There is no dual intent issue here ---- she came in with valid nonimmigrant intent, married a USC, and changed her intent.

The fact that she applied for OPT while you were married is irrelevant. She is not required to file I130/I485 at any time. If she wanted to maintain her nonimmigrant status for a while after she got married and only wanted to file for permanent resident status later, that is her right, as long as she maintains a valid status. The only practical problem with this is, should she want to travel, she may be questioned intensely and denied at the POE because she is married to a USC and is entering on nonimmigrant visa. (as mentioned above).

 

[encorebreak]

This is kind of related, but the situation is a bit different.. we have already filed the I-130 for my spouse, (and nothing else), but now he has a chance to go on a scholarship to the US.. but in order to get the scholarship, he needs to cancel the Green Card process.

Will us having filed an I-130 show up in the records at the POE? Can he get a J-1 with a canceled GC petition in his records? Our intentions have changed (honestly!) and we are willing to spend the 2 years to fulfill the HRR before applying again for immigration. We have been married two years and have been living in the home country all this time without filing for a GC, so staying for a few years longer is not a big deal.

Is there a chance we can prove this new intent to the Interview Officers, or does the fact that he once had a petition filed for him for a GC make him immediately ineligible for a J-1?

 

[rhoerus]

Hello,

I'm not versed myself in how a J-1 works (thus I would first suggest throwing this question to that forum, as they have better working knowledge of that specific type of visa).

But my second thought would be that you may have a third option. I believe a K-3 visa would allow for your spouse (you said you are married, right?) to come and live in the US, though I don't know a) how it would affect the 130, or if she would still be able to get the scholarship if she was on a different visa.

Regardless, you may need to consult a lawyer on that one. If J-1 is a nonimmigrant visa you'd almost certainly have problems 'convincing' the POE or visa-issuing officials of your changed intentions.

Anyway, I'm no expert here, but those are my initial thoughts. Best of luck to you and yours.

 

[pianoplayer]

This is kind of related, but the situation is a bit different.. we have already filed the I-130 for my spouse, (and nothing else), but now he has a chance to go on a scholarship to the US.. but in order to get the scholarship, he needs to cancel the Green Card process.

Will us having filed an I-130 show up in the records at the POE? Can he get a J-1 with a canceled GC petition in his records? Our intentions have changed (honestly!) and we are willing to spend the 2 years to fulfill the HRR before applying again for immigration. We have been married two years and have been living in the home country all this time without filing for a GC, so staying for a few years longer is not a big deal.

Is there a chance we can prove this new intent to the Interview Officers, or does the fact that he once had a petition filed for him for a GC make him immediately ineligible for a J-1?

Does this involve a Fulbright scholarship? Some more information would be helpful.

 

[zombie2006]

Hi Rhoreus,

I came to US on a F1 visa in JUL 05 and got married to a USC in MAY 06. And we filed for my AOS on 10th of AUG 06 and the interview was a breezer. I have been approved and am waiting for my card.

Just provide joint checking a/c docs, pictures, insurance and any other lease docs and stuff which have both names.I didn't have any of these...my father-in -law gave me a letter stating that me and my wife were living with them as i was still a student. (i just provided a joint checking a/c statement).

Your marriage is genuine so u don't really need to worry. Just prepare the documents properly with sufficient proof and am sure everything will go smooth(if god forbids can't say but i know he won't)

This info might not answer your questions but it will atleast give you some confidence.Good luck.

 

[zombie2006]

Hi Rhoreus,

I came to US on a F1 visa in JUL 05 and got married to a USC in MAY 06. And we filed for my AOS on 10th of AUG 06 and the interview was a breezer. I have been approved and am waiting for my card.

Just provide joint checking a/c docs, pictures, insurance and any other lease docs and stuff which have both names.I didn't have any of these...my father-in -law gave me a letter stating that me and my wife were living with them as i was still a student. (i just provided a joint checking a/c statement).

Your marriage is genuine so u don't really need to worry. Just prepare the documents properly with sufficient proof and am sure everything will go smooth(if god forbids can't say but i know he won't)

This info might not answer your questions but it will atleast give you some confidence.Good luck.

 

[encorebreak]

Does this involve a Fulbright scholarship? Some more information would be helpful.

Yes, pianoplayer, it does. We applied for the GC way after applying for the Fulbright - we thought that there was a chance he might not get it, so why not just start the GC process. But lo and behold, he got a letter a few days ago telling him that he was selected.

If we continue with the GC, he can't avail the scholarship (USCs and GC holders are ineligible)

If we withdraw the I-130 and then he doesn't get the J-1, then we're left with a scholarship that he can't avail.

We were both planning to apply to schools in the US for the Fall, 2007 term, so we thought he'd get the GC by then (since we've gone through DCF)..

So, any ideas on what could happen if we withdraw the petition? Does USCIS keep a record of I-130s filed, or just after you file the DS-230 (or whatever that Application for Green Card is called).. will the POE guy have records of his petition?

Again, I state, he really would have the intention of returning to fulfill the HRR, so it's not a question of him trying to illegally get into the US (I mean, he could do that much easier through a GC, right?). I dont mind us living in Pakistan for 2-3 years longer (I've already been living here for the past 10 years!) if he could have the opportunity to get an awesome education (for free!) and be a Fulbright Scholar to boot.

What do you guys think? I've posted another thread on this forum called 'Urgent! Canceling GC process?'. Ideas or suggestions are seriously needed!

 

[pianoplayer]

Yes, pianoplayer, it does. We applied for the GC way after applying for the Fulbright - we thought that there was a chance he might not get it, so why not just start the GC process. But lo and behold, he got a letter a few days ago telling him that he was selected.

If we continue with the GC, he can't avail the scholarship (USCs and GC holders are ineligible)

If we withdraw the I-130 and then he doesn't get the J-1, then we're left with a scholarship that he can't avail.

We were both planning to apply to schools in the US for the Fall, 2007 term, so we thought he'd get the GC by then (since we've gone through DCF)..

So, any ideas on what could happen if we withdraw the petition? Does USCIS keep a record of I-130s filed, or just after you file the DS-230 (or whatever that Application for Green Card is called).. will the POE guy have records of his petition?

Again, I state, he really would have the intention of returning to fulfill the HRR, so it's not a question of him trying to illegally get into the US (I mean, he could do that much easier through a GC, right?). I dont mind us living in Pakistan for 2-3 years longer (I've already been living here for the past 10 years!) if he could have the opportunity to get an awesome education (for free!) and be a Fulbright Scholar to boot.

What do you guys think? I've posted another thread on this forum called 'Urgent! Canceling GC process?'. Ideas or suggestions are seriously needed!

Hi there:

I have encountered this issue once before, but let me just say upfront that I have not researched this issue in depth, so these are only my thoughts.

You have only filed the I130 --- you have not filed the other consular forms yet. There is a chance that he may be able to proceed with his nonimmigrant application. If the scholarship is a wonderful offer, I do not see why not. If they do deny the visa, you can always go ahead and apply for an immigrant visa then. It would be too bad about the scholarship, but at least you tried.

Since you are in no apparent rush to have him immigrant, this would seem the prudent route to take.

Of course, there could be several complications. The consular officer may ask if someone has ever applied for I130 for him, and he may get denied based on that. They may not be convinced that he would obey the requirements of the visa etc. etc.

But I do not see any problem in trying.

 

[encorebreak]

Hi there:

I have encountered this issue once before, but let me just say upfront that I have not researched this issue in depth, so these are only my thoughts.

You have only filed the I130 --- you have not filed the other consular forms yet. There is a chance that he may be able to proceed with his nonimmigrant application. If the scholarship is a wonderful offer, I do not see why not. If they do deny the visa, you can always go ahead and apply for an immigrant visa then. It would be too bad about the scholarship, but at least you tried.

Since you are in no apparent rush to have him immigrant, this would seem the prudent route to take.

Of course, there could be several complications. The consular officer may ask if someone has ever applied for I130 for him, and he may get denied based on that. They may not be convinced that he would obey the requirements of the visa etc. etc.

But I do not see any problem in trying.

The consular officer WOULD have a record of me filing the I-130 for him, though, right? I wish we'd waited a few more weeks before we applied for the GC!!

Does anyone know if when I file the I-130 for the second time around, they'll ask any weird questions about why we withdrew the last one, and why we're filing again, or something like that? Do they have a problem with things like that or does it happen more often that I think it does..

I've emailed the Embassy, but they have yet to reply.

They did ask us (kinda suspiciously) how come we'd waited two years after we'd gotten married to file!

And, pianoplayer (or anyone else), do you know if the POE guys have these records? I have a feeling that even if we convince the consular officers of his intent NOT to immigrate (because apparently the Fulbright people accompany the candidate - in their own van - to the Embassy and to the interview, so that will help a lot), the POE officers will give him a hard time..

 

[pianoplayer]

The consular officer WOULD have a record of me filing the I-130 for him, though, right? I wish we'd waited a few more weeks before we applied for the GC!!

Does anyone know if when I file the I-130 for the second time around, they'll ask any weird questions about why we withdrew the last one, and why we're filing again, or something like that? Do they have a problem with things like that or does it happen more often that I think it does..

I've emailed the Embassy, but they have yet to reply.

They did ask us (kinda suspiciously) how come we'd waited two years after we'd gotten married to file!

And, pianoplayer (or anyone else), do you know if the POE guys have these records? I have a feeling that even if we convince the consular officers of his intent NOT to immigrate (because apparently the Fulbright people accompany the candidate - in their own van - to the Embassy and to the interview, so that will help a lot), the POE officers will give him a hard time..

Yes, that is probably your biggest problem. Since you did direct consular filing of the I130, the consulate is aware of that. Your chances are not great to get past them, but you may want to try, especially since that is your least costly option ---- if the consulate says no, you are still in Pakistan and can then continue the immigrant application.

POE is a more "expensive" problem, because you would be all the way to the US and may be sent back. There have been many cases where people with a filed I130 have gotten through POE --- it depends very much on your credibility to the official you deal with.

My thoughts are the same --- try and see if it works. Just be completely honest with them and tell them exactly what you told us here. They may or may not believe you, but honesty is the only way to go here.

Perhaps an opinion from a good immigration attorney in the US would be a good idea.