Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
Hi,
I have F1 Visa and currently, I am under OPT, which will expire in 7 days. My husband is a permanet resident (greencard holder) and have filled for my green card. I've sent I-130 form and waiting for the priority date to send the remain documentation.
My question is: as my OPT expires in 7 days, if I stay in the country waiting for the priority date, would I officially be illegal? Should I go to my country and wait for the priority date over there?
In 2 weeks my husband will apply for citzenship. What do you advice me to do? I I leave US can i have problem to come back to US or have delay in my application? Thank you
You will no longer have legal status once your OPT expires. Having a pending (or even approved) I-130 gives you no status. You would need to change to an H-1B if you qualify. Unfortunately, they are all used up for the next year, so unless your employer is exempt from the H-1B quota, that won't be a viable option.
If you leave the U.S., you will not be able to return until you have a status/visa on which to return. You might be able to come in as a visitor (whether you need a visitor visa or not depends on your nationality), but with an 1-130 filed on your behalf, an LPR husband, and your own stated intent, you run a high risk of being denied entry because you are an intending immigrant. And, in any event, even if you are let in, your admission would be limited to 90 days or 6 months, depending on whether you're visa waiver or have a visitor visa.
If you stay, you will be here illegally. Depending on your nationality, you may have a long wait for your priority date to become current. During this time, you will be accruing unlawful presence. If you accrue more than 180 days, if you leave the U.S., you would not be allowed back for 3 years. If you accrue more than a year, you would not be allowed back for 10 years. And, if your husband remains an LPR, you would have to leave the U.S. to get your green card status, and thus would trigger those bars.
However, if your husband's naturalization application is successful, you would become an "immediate relative" at that point, and not subject to the permanent visa quota anymore, so your priority date would cease to matter. And, provided you had not left the U.S. during this time, and are not otherwise inadmissible (such as having certain criminal convictions), you would be able to adjust status within the U.S. and not trigger the 3 or 10 year bar.
How long your husband's process is going to take depends on where he lives and thus what office is processing it. Most offices are taking about a year, give or take a few months.
Unfortunately, as you can see, the law and process are fairly ridiculous for someone in your situation. And, unfortunately, Congress seems unable to act to fix this. There might be some work-arounds for you depending on some specifics of your situation--a good immigration lawyer can advise you on that--but without that, your choices are to leave the U.S. and your husband for about 18 months (til he can naturalize, then you go through the green card process abroad) or wait here illegally.
Thank you for your response. It was very helpful. My last question for you is:
If I decide to go back to my country-Brazil-, and wait there my husband to become citizen, what happen with the process I have started? Will the initial process I-130 be canceled? Also, would my husband be able to leave US while his naturalization is in process?
Last edited by CarlaCamila; 08-31-2014 at 01:30 PM..
No, the I-130 process will continue. You will consular process instead of adjust status.
Your husband can leave while his naturalization is in process, but he should not be gone so long that he is considered to have abandoned his residence in the U.S. In other words, he can visit you in Brazil, but he can't live with you there.
Still a doubt about travel permission I-131. Is the letter necessary for those who have sent only I-130?
Detail: I got married in the United States... I am not married in my native country Brazil. If I leave US, can I still wait for my husband become citzen and apply for me? I think I will not be qualified as fiance, am I? Could be a problem being out of the country during all the process that can takes until 18 month?
Second: You have mentioned on your first reply - Paragraph 4th: And, "provided you had not left the U.S". - I understood that is in case I stay 'illegal' in US waiting my greencard, and applying thought citzen.... So, do you think that the process waiting outside of the country can take longer than waiting here?
So many issues!
The three lawyers I've consulted, advised me to stay illegal in US. I really do not want to be ilegal here. As you mentioned before, the law really need some adjustments.
Last edited by CarlaCamila; 09-01-2014 at 06:11 AM..
You are not eligible for the travel permission (I-131) unless and until your I-130 is approved, your priority date (if applicable) is current, and you've submitted your adjustment of status application. If you leave the U.S., you are no longer eligible to apply for adjustment of status, and so also are not eligible for the travel permission.
Under U.S. law, whether your marriage is recognized depends on whether it was valid in the place in which it was entered into. So, if you legally married in the U.S., that's what matters for immigration purposes.
The process might be a little longer outside the U.S. It depends on a number of factors-- place of residence in the U.S., backlog at the USCIS office serving that, backlog at the embassy or consulate out of the country, etc. In the end, it probably is not a huge difference. The difference is whether you are with your husband or not during that time.
Yes, staying illegally is actually a better option, though of course I can't advise you to break the law. The problem is, the law itself is twisted, as you note.
My husband is filling the form I-400 for his naturalization.
We have checked over all the documentation required, but there is no section saying he should send his current marriage certified. Only previous marriages - the divorces. Is that correct? Shouldn't he send our marriage certified with I-400 form? Thank you again.
The request for proof of termination of prior marriages is actually a mistake in the layout of the instructions. It's supposed to go with the section for what you provide if you are relying on a marriage to a U.S. citizen to qualify to apply after 3 years instead of the usual 5. But he should go ahead and submit the documents anyway just because the instructions say so. No need to submit your marriage certificate, but no harm in doing so.
If during the process of naturalization of my husband my priority date happens to be current... what should I do? I filled the I-130 for adjustment of status and while living in US. Moving to Brazil I have to go through the Consular Process, right? So, should I send a form to USCIS changing from Adjustment of Status to Consular Process before leaving USA?
What would be the best way to continue the process?
Thank you again!
If during the process of naturalization of my husband my priority date happens to be current... what should I do? I filled the I-130 for adjustment of status and while living in US. Moving to Brazil I have to go through the Consular Process, right? So, should I send a form to USCIS changing from Adjustment of Status to Consular Process before leaving USA?
What would be the best way to continue the process?
Thank you again!
The best way to handle this depends on exactly how far out your date is, and how the agencies are handling these things at the moment. I don't know the current best route. Suggest you consult an attorney. Go to AILA's Immigration Lawyer Search and under Type of Lawyer, pick Consular Processing.
Please register to post and access all features of our very popular forum. It is free and quick. Over $68,000 in prizes has already been given out to active posters on our forum. Additional giveaways are planned.
Detailed information about all U.S. cities, counties, and zip codes on our site: City-data.com.
Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
