Want to file for Spousal Petition and then get ceremoniously married. Maybe not as straight forward as it appears?

krnai

New Member
I am a naturalized US citizen and presently my girlfriend is an international student here in the states on an i20. Her present program is due to end in December of 2020, at which point she will be eligible for OPT.

We are planning on getting married in Jan of 2021 in India. But we also want to make sure that when we both leave the US to get ceremoniously married we can both come back without the pitfall of her having to stay behind while I file for a spousal petition.

How do we go about ensuring that we can both leave and come back together after our wedding in Jan 2021?

I understand that we would have to legally get married here in the US prior to leaving. But does doing that and filing for AOS restrict her ability to travel out of the country while we wait? We don't want to simply hope for the best and assume that she will be able to land a job that will also give her time off immediately after starting, odds of that happening seem more slim than we care to take the chance on.

Relevant information, her existing passport expires in July of 2021 hence we plan on travelling back before the 6 month restriction of passport use for travel.

Any advice or help is greatly appreciated !

Thanks
 
If you get married legally in the US and file AOS, she cannot leave before she gets an advance parole (AP) document, or she will be deemed to have abandoned the AOS application and have to undergo consular processing from home. AP documents are apparently taking 4-6 months to process at the moment. So she would be stuck unable to travel for that duration.
If you leave before filing AOS, you can’t have her re-enter on a non-immigrant visa with intent to file AOS, so she will have to wait behind in her home country for processing.

There is no scenario under which she can both file AOS after marriage here and be free to travel back and forth immediately, so you need to decide which is more important for you - having her in the US and doing AOS, or being able to travel but then having to do consular processing from abroad.
 
If you get married legally in the US and file AOS, she cannot leave before she gets an advance parole (AP) document, or she will be deemed to have abandoned the AOS application and have to undergo consular processing from home. AP documents are apparently taking 4-6 months to process at the moment. So she would be stuck unable to travel for that duration.
If you leave before filing AOS, you can’t have her re-enter on a non-immigrant visa with intent to file AOS, so she will have to wait behind in her home country for processing.

There is no scenario under which she can both file AOS after marriage here and be free to travel back and forth immediately, so you need to decide which is more important for you - having her in the US and doing AOS, or being able to travel but then having to do consular processing from abroad.


Welp that sucks....
But if we do AOS can we apply for AP in conjunction with AOS? That way we can still travel back home and come back? Or can we only apply for AP for her after AOS is processed and approved?

Or would filing for a k1 be an option too? Say if we filed for a k1 while she's still here then travel home and come back and then get legally married here in the states?

Sorry I'm an absolute newbie to all of this and am just trying to get as much info as possible.

Thanks
 
Welp that sucks....
But if we do AOS can we apply for AP in conjunction with AOS? That way we can still travel back home and come back? Or can we only apply for AP for her after AOS is processed and approved?

Or would filing for a k1 be an option too? Say if we filed for a k1 while she's still here then travel home and come back and then get legally married here in the states?

Sorry I'm an absolute newbie to all of this and am just trying to get as much info as possible.

Thanks
You can apply for AP when you file AOS, but it will take 4-6 months till you get the AP card, and she cannot travel until she gets the card in hand. (Well she can travel but as above, if she travels before she has it she is deemed to have abandoned AOS and won’t be able to come back with you.)
Filing for K1 means a visa interview has to be done from abroad to get the K1 visa - and the petition takes around a year for processing, so again she’d have to wait there - it won’t work for your purposes either. Also to be eligible for K1 you have to be totally unmarried - not just legally but traditionally/customary etc too. So you can’t do a ceremonial marriage and then file for K1/have her enter on a K1 visa.
Nothing in immigration is fast, unfortunately.
 
can apply for AP when you file AOS, but it will take 4-6 months till you get the AP card, and she cannot travel until she gets the card in hand.

Ok so there's atleast that... So hypothetically if we were to get married here, then file for adjustment and apply for AP say in April/May 2020 (factoring in a month or two for the cogs of Uncle Sam) we would have enough time to apply for both AOS and AP and could travel there and back in Jan of 2021?

I'm assuming when applying for AP we can specify the dates of travel and just abide by that?

Thanks
 
Ok so there's atleast that... So hypothetically if we were to get married here, then file for adjustment and apply for AP say in April/May 2020 (factoring in a month or two for the cogs of Uncle Sam) we would have enough time to apply for both AOS and AP and could travel there and back in Jan of 2021?

I'm assuming when applying for AP we can specify the dates of travel and just abide by that?

Thanks

Question: What is stopping you getting legally married now? Seems to me the easiest way to get traveling by Jan 2021 is to get the process started asap, she will at least have AP by then and may even have her green card, depending on your field office.
 
Question: What is stopping you getting legally married now? Seems to me the easiest way to get traveling by Jan 2021 is to get the process started asap, she will at least have AP by then and may even have her green card, depending on your field office.

So her parents are actually going to be visiting the states around next April so it was a wishful thinking, that we could have both of our parents present when we get legally married and have them as witnesses. Even if it is a formality it would be nice to have them there... That's all. Obviously with the time it's taking based on what you stated above maybe that's something we need to rethink...
 
So her parents are actually going to be visiting the states around next April so it was a wishful thinking, that we could have both of our parents present when we get legally married and have them as witnesses. Even if it is a formality it would be nice to have them there... That's all. Obviously with the time it's taking based on what you stated above maybe that's something we need to rethink...

Well, if you get married in April and file for AOS + AP immediately after that, you’ll have the AP card by the time you need to go to India, so that will still work for your purposes.
 
Well, if you get married in April and file for AOS + AP immediately after that, you’ll have the AP card by the time you need to go to India, so that will still work for your purposes.
Ok that sounds good!
I have one more question, just kinda thought of it. So when we file for AOS and AP the ID she would be using would be her current Indian passport. Now that passport expires in July of 2021. From what we've found online the passport actually changes when she applied for a renewal. Is this a cause for concern? Would we have to refile any paperwork upon renewing the passport?

Again thank you so much you've been super helpful with this.
 
Ok that sounds good!
I have one more question, just kinda thought of it. So when we file for AOS and AP the ID she would be using would be her current Indian passport. Now that passport expires in July of 2021. From what we've found online the passport actually changes when she applied for a renewal. Is this a cause for concern? Would we have to refile any paperwork upon renewing the passport?

Again thank you so much you've been super helpful with this.

No, no problems with that. She may even have her green card by then anyway.
 
Dope.

Again thank you very much for your help. This is super helpful. Are you an attorney by any chance? Or just someone that's been soaking up this info?
 
Dope.

Again thank you very much for your help. This is super helpful. Are you an attorney by any chance? Or just someone that's been soaking up this info?
Ha no, just been around a while.
The site is owned by an immigration attorney however, should you want to consult. He does host free conference calls too.
 
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