Sponsor GC for boyfriend who is out of status in the future. What option do we have.

A

Allie.H

New Member
My boyfriend and I are both F1 student. He recently graduated but his OPT got denied because he submitted it late. When the school informed him, he was locked out of the email, therefore, didn’t know about it til now. It was his fault for not updating his email. He basically has been out of status for nearly 5 months.
I am currently working for a hospital and they will sponsor or my GC in the future.

His parents told him to go to Canada to study master to get citizenship there and when I have my GC I can sponsor him through marriage and bring him back to the US. I heard that it is almost impossible to enter/have a GC once you have stay in the US illegally. What other options do we have to ensure that he can stay and get his GC through me in the future?

Thank you everyone.
 
He will not be denied an immigrant visa if he doesn't have a ban. He doesn't need to worry about the unlawful presence ban (where if one accrues between 180 days and 1 year of unlawful presence and then leaves the US, they trigger a 3-year ban; if one accrues more than 1 year of unlawful presence and then leaves the US, they trigger a 10-year ban), because as an F1 student, he is almost certainly admitted for "D/S", instead of a date, on his I-94. People with "D/S" on their I-94 generally do not start to accrue unlawful presence at any point (unless they applied for something to USCIS and was denied, or they were put into removal proceedings); therefore, he does not start to accrue "unlawful presence" even if he stays for years after the end of his program. So he does not need to worry about a ban no matter when he leaves (as long as he doesn't get deported).

He will not be able to do Adjustment of Status (the process of getting a GC from within the US) because he is out of status or has once been out of status (unless his spouse, presumably you, becomes a US citizen; but your naturalization would be very far down the road since you haven't even gotten a GC yet, and he doesn't want to stay illegally in the US for that long). He should have no problem getting a GC by Consular Processing abroad for an immigrant visa (which would be at the US consulate in Montreal if he wants to interview in Canada).

It sounds like you will be the principal beneficiary of an employment-based immigration case. If you guys marry before you get your GC, he can immigrate as your derivative beneficiary. Although you would probably be doing Adjustment of Status inside the US, and he can't do Adjustment of Status, he can still do Consular Processing via follow-to-join (you can file the I-485 for Adjustment of Status together with the I-824 for your spouse to follow to join once your AOS is approved). The follow-to-join process takes some time, but it should be faster than you petitioning him for family-based immigration separately with I-130, because that would be in the F2A category, which currently has a few years of wait for visa numbers. Plus, family-based immigration would require you to file I-864 Affidavit of Support which wouldn't be necessary if he were immigrating as a derivative beneficiary.
 
newacct said:
He will not be denied an immigrant visa if he doesn't have a ban. He doesn't need to worry about the unlawful presence ban (where if one accrues between 180 days and 1 year of unlawful presence and then leaves the US, they trigger a 3-year ban; if one accrues more than 1 year of unlawful presence and then leaves the US, they trigger a 10-year ban), because as an F1 student, he is almost certainly admitted for "D/S", instead of a date, on his I-94. People with "D/S" on their I-94 generally do not start to accrue unlawful presence at any point (unless they applied for something to USCIS and was denied, or they were put into removal proceedings); therefore, he does not start to accrue "unlawful presence" even if he stays for years after the end of his program. So he does not need to worry about a ban no matter when he leaves (as long as he doesn't get deported).

He will not be able to do Adjustment of Status (the process of getting a GC from within the US) because he is out of status or has once been out of status (unless his spouse, presumably you, becomes a US citizen; but your naturalization would be very far down the road since you haven't even gotten a GC yet, and he doesn't want to stay illegally in the US for that long). He should have no problem getting a GC by Consular Processing abroad for an immigrant visa (which would be at the US consulate in Montreal if he wants to interview in Canada).

It sounds like you will be the principal beneficiary of an employment-based immigration case. If you guys marry before you get your GC, he can immigrate as your derivative beneficiary. Although you would probably be doing Adjustment of Status inside the US, and he can't do Adjustment of Status, he can still do Consular Processing via follow-to-join (you can file the I-485 for Adjustment of Status together with the I-824 for your spouse to follow to join once your AOS is approved). The follow-to-join process takes some time, but it should be faster than you petitioning him for family-based immigration separately with I-130, because that would be in the F2A category, which currently has a few years of wait for visa numbers. Plus, family-based immigration would require you to file I-864 Affidavit of Support which wouldn't be necessary if he were immigrating as a derivative beneficiary.
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Thank you so much for your response. If my boyfriend goes to canada to study and when I get my gc I sponsor him through marriage. What are the odds as I know once you have stayed here illegally and left, it is very difficult to come back in.
 
Allie.H said:
\What are the odds as I know once you have stayed here illegally and left, it is very difficult to come back in.
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This is incorrect. Like I said, he should have no problems getting an immigrant visa based on what you said.
 
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