F1 wanting to marry pending I-485 AOS applicant

[kvenkat]

My sister-in-law is on F1 student visa and wants to get married to a guy whose I-485 is pending. His priority dates are not current yet but likely to become current soon. My sister-in-law has been in the US on F1 visa since July 2007 and made a trip back home in June 2009 last.

I understand they need to get married before his I-485 is approved for her to apply for I-485 and that the priority dates should become currently to file her application. Here are my questions:

- Can they travel back home to get married ?
- Can she re-enter, after marriage, on F1 visa ?
- Would a travel and re-entry on F1 jeopardize her I-485 application (even though she has been in US on F1 since July 2007) ?
- If her I-485 isn't filed before his I-485 approval (say, hypothetically his I-485 got approved the day priority dates became current) but they got married before his I-485 approval, can she still apply for AOS within the 180 day period and get Green Card without having to wait for years ?

Oh, and should I-130 be filed for her ?

Thanks.

 

[fromnaija]

See my reply in RED.

- Can they travel back home to get married ? Yes, if she has a valid visa to reenter.
- Can she re-enter, after marriage, on F1 visa ? Yes, if she has a valid F1 visa. Alternative if he is on H1, she can reenter on H4 after marriage.
- Would a travel and re-entry on F1 jeopardize her I-485 application (even though she has been in US on F1 since July 2007) ? Not necessarily.
- If her I-485 isn't filed before his I-485 approval (say, hypothetically his I-485 got approved the day priority dates became current) but they got married before his I-485 approval, can she still apply for AOS within the 180 day period and get Green Card without having to wait for years ? As long as the wedding takes place before his 485 is approved she will be able to get a green card without having to wait for years.

Oh, and should I-130 be filed for her ? No need for I-130. If she is in the US when his priority date becomes current she only needs to file I-485.

Thanks.

 

[Jackolantern]

- Can they travel back home to get married ?

Of course. Returning to the US is another issue.

- Can she re-enter, after marriage, on F1 visa ?

If they know she got married to somebody with a pending I-485, they probably won't let her in with the F-1 visa.

- Would a travel and re-entry on F1 jeopardize her I-485 application (even though she has been in US on F1 since July 2007) ?

If she re-enters the US successfully, and waits until at least 90 days after entry to file the I-485, she should be OK. However, she might not be able to reenter the US successfully.

- If her I-485 isn't filed before his I-485 approval (say, hypothetically his I-485 got approved the day priority dates became current) but they got married before his I-485 approval, can she still apply for AOS within the 180 day period and get Green Card without having to wait for years ?

As long as they got married before his I-485 approval, she can apply for AOS when his PD becomes current. If his PD remains current for 6+ months after his I-485 approval, she should get her green card within 6 months of filing the I-485. Otherwise, if retrogression kicks in, she'll have to wait for the PD to become current again, which could take years.

Oh, and should I-130 be filed for her ?

No, she would be filing as a derivative of his I-140/I-485 process.

Does he have H1B or L1 visa? If yes, that would enable her to obtain H4 or L2, and there would be no issue of her being refused entry because of being married to an I-485 applicant. She can continue to study with the H4 or L2, but she should update the International Student Office of her new status. And after 1 year of H4 or L2 status, it may be possible for her to qualify for the in-state tuition rate (depending on the specific rules of her state).