GC for my wife to be who is on F-1

[nipster77]

Hello,

I'm a US green card holder for about 4 years. I'm hoping to get married in May 2008 to my fiance who is currently in the US on an F-1 visa and will be graduating also in May 2008. She has been offered a full time job upon graduation but due to the new restrictions and quotas on H-1B some of her company employees haven't been able to secure H1-B visas and thus have had to be relocated to other countries where they operate out of. I'm trying to avoid some thing like that from happening to my fiance.

I'm originally from Bangladesh and so is she and her OPT ends in Feb 2009.

So my questions are:
- Once we're married how can I apply for her GC myself without having to depend on her employer? (Do I need to do this through my employer or can be done independently?)
- How long will this process take?
- What steps can be taken to ensure that she never has to leave the US throughout this process?

Thanks -Nipster77

 

[GotPR?]

So my questions are:
- Once we're married how can I apply for her GC myself without having to depend on her employer? (Do I need to do this through my employer or can be done independently?)
you can sponsor her GC. Filing I-130 is the 1st step.
- How long will this process take?
It will be between 2 years and 6, 7 years depending on which route you go.
If you have plan to be a US citizen, it's most likely less than 2 years from now.
- What steps can be taken to ensure that she never has to leave the US throughout this process?
If you really want to ensure she never has to leave the US, let her keep her status all the time.(although it could be difficult at some point unless you get US citizenship).
Thanks -Nipster77

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[Jackolantern]

Once we're married how can I apply for her GC myself without having to depend on her employer? (Do I need to do this through my employer or can be done independently?)

Marriage-based green cards are done independently from your or her employer.

How long will this process take?

If you don't get citizenship, it takes 5 or more years for the spouse's priority date to become current. You would be able to file the I-130 immediately, but have to wait 5+ years to file the I-485. The problem is that having a pending or approved I-130 and an F-1 visa means she could be denied at the port of entry, because of the I-130 which is evidence of immigrant intent. And merely being married to a green card holder is evidence of immigrant intent (if they know about the marriage).

However if you are a citizen, the I-130 and I-485 can be filed immediately once you are married.

What steps can be taken to ensure that she never has to leave the US throughout this process?

Given your situation, you can't ensure that. If she doesn't get an H1B, and you don't get citizenship by the time her OPT expires, she'll have to leave the country or be out of status. Unless you pursue another strategy such as delaying the marriage until after you find out if her H1B is approved or not. If yes, she can change to that status in October and there is no issue about immigrant intent. If not, she could extend/renew her F-1 status by doing another degree (masters or second bachelors, for example), then marry her once you get citizenship.

 

[nipster77]

Thanks to both of you for your responses. I just talked to my lawyer today and she wasn't really sure about the processing times but you both are right about maybe having to wait until I get my citizenship to file the I-130.

The lawyer also said I can start my naturalization process 3 months prior to the completion of 5 years of PR. What paperwork do I need to file to become a citizen?

She also said that filing an I-130 shows emigrant intent and may nullify her F1 status. I wasn't really aware of this until now and Jackolantern, you made the same point about possibly getting denied at the port of entry. I'm guessing this applies to H1 as well?
In other words, if my spouse is either on F1 or H1 and I file an I-130, she could technically be out of status by the mere fact of mailing in an I-130 form?

These are really some ridiculous laws!

Thanks again for your valuable input -Nipster77

 

[GotPR?]

.

Thanks to both of you for your responses. I just talked to my lawyer today and she wasn't really sure about the processing times but you both are right about maybe having to wait until I get my citizenship to file the I-130.

The lawyer also said I can start my naturalization process 3 months prior to the completion of 5 years of PR. What paperwork do I need to file to become a citizen?
90 days, not 3 months in advance.
She also said that filing an I-130 shows emigrant intent and may nullify her F1 status.
Technically it's not correct. I-130 does not affect the current status, however, it may make it difficult to get F1 visa next time due to immigrant intent.
I wasn't really aware of this until now and Jackolantern, you made the same point about possibly getting denied at the port of entry. I'm guessing this applies to H1 as well?
H1 is dual intent and has no problem with immigration intent.
In other words, if my spouse is either on F1 or H1 and I file an I-130, she could technically be out of status by the mere fact of mailing in an I-130 form?
I-130 does not affect the status.
These are really some ridiculous laws!

Thanks again for your valuable input -Nipster77

 

[Jackolantern]

I just talked to my lawyer today and she wasn't really sure about the processing times but you both are right about maybe having to wait until I get my citizenship to file the I-130.

Citizenship is not necessary for the I-130. But it creates the immigrant intent issue which conflicts with the F-1, so it could be problematic for an F-1 holder to file an I-130 without also filing the I-485, due to being unable to leave the country and reenter, and unable to extend the F-1 status. Remember the I-130 and I-485 are two distinct steps of the process; don't confuse them.

She also said that filing an I-130 shows emigrant intent and may nullify her F1 status.

Not unless she leaves the country and tries to reenter.

If she stays in the US, her F1 status is not lost because of the I-130. However, filing an I-485 will invalidate the F-1 status, although that usually isn't a problem because once having filed the I-485 she can continue to stay in the country and study and work. But again, without you having citizenship she would have to wait 5+ years to file the I-485.