Marriage to USC after F1-OPT

B

blender

Registered Users (C)
Situation:
on F1 status, graduated May-2008, now on OPT that ends on 7/1/09. I have 60 days after that to leave the country but want to marry my gf (US citizen).

Do we have to be married before the 60 days are up (Aug 30th)? What happens if I stay longer and we marry say December 15th? Would I be able to adjust status or would I accumulate unlawful presense?

Thanks
 
blender said:
Situation:
What happens if I stay longer and we marry say December 15th? Would I be able to adjust status or would I accumulate unlawful presense?

Thanks
Click to expand...

You would be out of status until you file for AOS and receive NOA. Yes you will be able to AOS but would accumlate unlawful presence until you recieve a NOA then the unlawful presence clock will toll. Just a piece of advise it is always better to file AOS while in status.
 
My bad I forgot that most f-1 visa holders have d/s on their i-94's. What that means is that the unlawful presence clock does not start until there is a formal ruling that that person is out of status. Pretty much the only difference it makes is that if a person had d/s on thier i-94 they could leave the country with advance parole and still be let back in even after having been out of status for years as long as there was no formal ruling declaring them out of status whereas persons with a specific depart by date on their i-94 start to accumulate illegal presence on the day after that date.
 
AzBlk said:
My bad I forgot that most f-1 visa holders have d/s on their i-94's. What that means is that the unlawful presence clock does not start until there is a formal ruling that that person is out of status.
Click to expand...
However, these days with SEVIS, the schools are in frequent communication with USCIS, and will inform USCIS that the student has graduated. And USCIS will surely be aware of the expiration of the OPT, since they themselves processed it. So there is a possibility that there will be a formal determination of violating status, and the OP won't necessarily receive notification of it.
 
Last edited by a moderator:
blender said:
Do we have to be married before the 60 days are up (Aug 30th)? What happens if I stay longer and we marry say December 15th? Would I be able to adjust status or would I accumulate unlawful presense?
Click to expand...
You will still be able to adjust status by marrying a USC, but you are subject to deportation during the time after your 60-day grace period expires and before you file the I-485. ICE could show up at your door on any day, or a brush with the law (including driving with an expired license ... you probably won't be able to renew your license while out of status) could land you in removal proceedings.

Also, although the D/S gives you a little protection from accumulation of illegal presence, you don't know when your illegal presence starts because you won't necessarily know when they have made the formal determination that triggers it. Once you have accumulated 180 days of illegal presence, you won't be able to leave the US and return with Advance Parole; you'd have to wait for green card approval.
 
thanks guys.

would you say my best option is to stay past OPT grace period and possibly accumulate 3.5 months of unlawful presence until AOS is filed rather than going back to home country and getting fiance visa (which would take 9 months or so)?
 
So the underlying issue here is that you want to delay the marriage? Instead of getting married soon and filing the papers before the 60-day grace period expires?
 
I'm sorry but why can't you just marry her? Any issues? Then you'll get EAD and AP in couple months (if not quicker) and you are good to go. Plus you won't get any accumulated presence and all that.
 
Great. You have been involved with a married woman. Look up adultery. There are many things that can delay the divorce. Leave the country and let her petition you as fiance when her divorce is final.
 
well, adultery and divorce issues are not for this forum. anyway, she divorced March 3, but the decree becomes final 9 months after. so official divorce date after which she can legally marry will be December 3. hence the dilemma.

and thanks for being Concerned4us :)
 
blender said:
I wish life was that easy :)
She is getting divorced now and it is taking way too long :(
Click to expand...

Oh, I see... Can't advise on that one, unfortunately. :( If you stay here with her your "out-of-status" will be forgiven when you marry her and adjust (although you won't be able to leave the country till you get your GC to avoid the bars). However if you feel comfortable enough to wait outside the country, you can certainly go that way.
 
Triple Citizen said:
Why don't you wait for her divorce to finalise, outside the US?
Click to expand...

I can wait outside, it just seems it would take much longer to get back together. K-1 visa would take about 7 months to process or longer. If she files for me right after the divorce is final the soonest I would be able to comeback to the US would be June of 2010. And then I would need to start GC process.
 
blender,

I think in your scenario, your best bet is to go back to school on F-1. Find a cheap community college and enroll for a one year certificate or diploma. your I-94 that states D/S will kick in and you will be legal as long as you want to be a professional student.

I bet you anything, no USCIS official will ever point a finger at you for going back to school.
 
blender said:
well, adultery and divorce issues are not for this forum. anyway, she divorced March 3, but the decree becomes final 9 months after. so official divorce date after which she can legally marry will be December 3. hence the dilemma.
Click to expand...
How certain is it that it will be finalized by December? It's not a good idea to hang around in the US being out of status without knowing when you can get back into legal status.
 
Just a wild guess: What about getting married in a different country within these 60 days? Canada etc? I suggest getting a legal advice from a lawyer.
 
You must log in or register to reply here.
Top