Urgent: Can she leave the country for an emergency?

[k0mplex 0]

I am a U.S. citizen engaged to an Australian woman who is living in the U.S. on an F1 student visa.  Our plan is to get married in August and then file an adjustment of status to permanent resident for her.

My understanding is that she cannot leave the country until her status is adjusted (or advanced parole is granted).   We have not started any paperwork yet for her AOS or AP.

However, a family issue has come up and she really needs to visit her parents overseas next week.  The sooner she can leave the better.  Is there any way she can go without compromising her application?  What is the risk that she wouldn't be able to re-enter the country?

Thank you for any advice.

[payxibka 10,045]

A sticky wicket at best....

Upon her last entry she did not have the intent to immigrate via a non-immigrant visa... upon her next one, she will be hard pressed to maintain that....

[k0mplex 0]

A sticky wicket at best....  Upon her last entry she did not have the intent to immigrate via a non-immigrant visa...  upon her next one, she will be hard pressed to maintain that....

Suppose she isn't questioned about marriage at customs and has no problem re-entering the U.S.  What happens when we go to file for her AOS?  I assume they'll ask about all the trips she has made?  Will this trip compromise her application since, as you say, it'll be hard to suggest she didn't have intent to marry upon re-entry?  Does it make any difference at all that this is an emergency?  Is there no emergency exception?

[KimandRuss 0]

If she tells the truth...that she is coming back to marry and stay...she will be turned away. Even if she has a valid re-entry visa or travels on the VWP she is coming into the country with the intent to immigrate.

[KimandRuss 0]

You can only file for an expedite of AP if you're married so no, it doesn't matter that it's an emergency, sorry.

Nobody can tell you what they will say when you go to adjust status but I would imagine it would be pretty difficult to prove there was no intent.

Hope it all works out for you.

[k0mplex 0]

You can only file for an expedite of AP if you're married so no, it doesn't matter that it's an emergency, sorry.

Nobody can tell you what they will say when you go to adjust status but I would imagine it would be pretty difficult to prove there was no intent.

Hope it all works out for you.

I hear ya. And if we don't try to prove there was no intent, but just tell them honestly about the trip when we file her papers, what would happen? Denial of application? Revoked visa? Or is it possible they won't mind?

[KimandRuss 0]

Hard to say but Intent to immigrate is considered immigration fraud and there are serious consequences.

[DI&JR 1]

I am a U.S. citizen engaged to an Australian woman who is living in the U.S. on an F1 student visa. Our plan is to get married in August and then file an adjustment of status to permanent resident for her.

My understanding is that she cannot leave the country until her status is adjusted (or advanced parole is granted). We have not started any paperwork yet for her AOS or AP.

However, a family issue has come up and she really needs to visit her parents overseas next week. The sooner she can leave the better. Is there any way she can go without compromising her application? What is the risk that she wouldn't be able to re-enter the country?

Thank you for any advice.

But, she is currently here on an F1? Probably the best thing is for her to talk to the international office at her school - if they can't advise, they will certainly have access to lawyers.

[pushbrk 12,761]

I am a U.S. citizen engaged to an Australian woman who is living in the U.S. on an F1 student visa. Our plan is to get married in August and then file an adjustment of status to permanent resident for her.

My understanding is that she cannot leave the country until her status is adjusted (or advanced parole is granted). We have not started any paperwork yet for her AOS or AP.

However, a family issue has come up and she really needs to visit her parents overseas next week. The sooner she can leave the better. Is there any way she can go without compromising her application? What is the risk that she wouldn't be able to re-enter the country?

Thank you for any advice.

But, she is currently here on an F1? Probably the best thing is for her to talk to the international office at her school - if they can't advise, they will certainly have access to lawyers.

They can advise until the cows come home but they don't deal with family visas at her school.

If she leaves now and plans remain the same, she will be entering with intent to use a student visa to marry and adjust status based on that marriage. As such, the AOS route will not be applicable, IMO. They'll need to go the immigrant visa route to remain legal. Of course she can stay within the terms of her I-94 and perhaps only return briefly to Australia for a visa interview. Perhaps, the difference is only a minor inconvenience. Exept for the travel expense, it's actually less expensive to do it that way. An immigrant visa fee is less expensive than AOS.

[k0mplex 0]

I am a U.S. citizen engaged to an Australian woman who is living in the U.S. on an F1 student visa.  Our plan is to get married in August and then file an adjustment of status to permanent resident for her.My understanding is that she cannot leave the country until her status is adjusted (or advanced parole is granted).   We have not started any paperwork yet for her AOS or AP.However, a family issue has come up and she really needs to visit her parents overseas next week.  The sooner she can leave the better.  Is there any way she can go without compromising her application?  What is the risk that she wouldn't be able to re-enter the country? Thank you for any advice.

But, she is currently here on an F1?  Probably the best thing is for her to talk to the international office at her school - if they can't advise, they will certainly have access to lawyers.

They can advise until the cows come home but they don't deal with family visas at her school.  If she leaves now and plans remain the same, she will be entering with intent to use a student visa to marry and adjust status based on that marriage.  As such, the AOS route will not be applicable, IMO.  They'll need to go the immigrant visa route to remain legal.  Of course she can stay within the terms of her I-94 and perhaps only return briefly to Australia for a visa interview.  Perhaps, the difference is only a minor inconvenience.  Exept for the travel expense, it's actually less expensive to do it that way.  An immigrant visa fee is less expensive than AOS.

How is the immigrant visa route different than the adjustment of status route?Also, she needs to go to Europe to see her family, not Australia.  So a trip to Australia isn't of any interest to her.

[payxibka 10,045]

How is the immigrant visa route different than the adjustment of status route?

With an immigrant visa you enter the country WITH the intention to immigrate....

With a non-immigrant visa you enter the country WITHOUT the intention to immigrate.... If your intention changes after entry and you are eligible to adjust then you file for adjustment of status from within the USA....

With a non-immigrant visa you enter WITH the intention to immigrate you are INELIGIBLE to change your status from within the USA.

Edited June 20, 2008 by fwaguy

[pushbrk 12,761]

How is the immigrant visa route different than the adjustment of status route?

With an immigrant visa you enter the country WITH the intention to immigrate....

With a non-immigrant visa you enter the country WITHOUT the intention to immigrate.... If your intention changes after entry and you are eligible to adjust then you file for adjustment of status from within the USA....

With a non-immigrant visa you enter WITH the intention to immigrate you are INELIGIBLE to change your status from within the USA.

Right, it all has to do with intent at entry. If your intent at entry is to immigrate you need a visa that allows immigration. See the guides for spouse visas.

You said your fiancee was Australian, and needed to travel overseas to see family, so please forgive my errant assumption the travel was to Australia. The travel for the visa interview would be unless she's a legal resident of some other country besides Australia.

Note: This is all posted in the K1 (fiancee) visa forum but she cannot get a fiancee visa by August when you plan to marry.

Edited June 20, 2008 by pushbrk

[DI&JR 1]

I am a U.S. citizen engaged to an Australian woman who is living in the U.S. on an F1 student visa. Our plan is to get married in August and then file an adjustment of status to permanent resident for her.

My understanding is that she cannot leave the country until her status is adjusted (or advanced parole is granted). We have not started any paperwork yet for her AOS or AP.

However, a family issue has come up and she really needs to visit her parents overseas next week. The sooner she can leave the better. Is there any way she can go without compromising her application? What is the risk that she wouldn't be able to re-enter the country?

Thank you for any advice.

But, she is currently here on an F1? Probably the best thing is for her to talk to the international office at her school - if they can't advise, they will certainly have access to lawyers.

They can advise until the cows come home but they don't deal with family visas at her school.

An F1 visa is not a family visa. She is already in the US currently. That is why I suggested she talk to her international adviser at her school. Although it is not completely apparent from the original post, it sounds to me like she didn't enter the US in F1 status to marry, but to go to school.

If she leaves now and plans remain the same, she will be entering with intent to use a student visa to marry and adjust status based on that marriage. As such, the AOS route will not be applicable, IMO. They'll need to go the immigrant visa route to remain legal. Of course she can stay within the terms of her I-94 and perhaps only return briefly to Australia for a visa interview. Perhaps, the difference is only a minor inconvenience. Exept for the travel expense, it's actually less expensive to do it that way. An immigrant visa fee is less expensive than AOS.

This is where I am not sure. My assumption is that she will be continuing her studies (Original poster? Is this so?). Does that, therefore, supercede returning to the US where there is a wedding in the future?

On the other hand, if she has finished her studies and wishes merely to return to wed and adjust status, then they should be planning on a family-based visa.

Unfortunately, it's too late for me to inquire at our international studies office today; the immigration lawyers with whom we work handle school-, employment- and family-based immigration; that is why I suggested she talk to her international studies office.

[k0mplex 0]

I am a U.S. citizen engaged to an Australian woman who is living in the U.S. on an F1 student visa. Our plan is to get married in August and then file an adjustment of status to permanent resident for her.

My understanding is that she cannot leave the country until her status is adjusted (or advanced parole is granted). We have not started any paperwork yet for her AOS or AP.

However, a family issue has come up and she really needs to visit her parents overseas next week. The sooner she can leave the better. Is there any way she can go without compromising her application? What is the risk that she wouldn't be able to re-enter the country?

Thank you for any advice.

But, she is currently here on an F1? Probably the best thing is for her to talk to the international office at her school - if they can't advise, they will certainly have access to lawyers.

They can advise until the cows come home but they don't deal with family visas at her school.

An F1 visa is not a family visa. She is already in the US currently. That is why I suggested she talk to her international adviser at her school. Although it is not completely apparent from the original post, it sounds to me like she didn't enter the US in F1 status to marry, but to go to school.

If she leaves now and plans remain the same, she will be entering with intent to use a student visa to marry and adjust status based on that marriage. As such, the AOS route will not be applicable, IMO. They'll need to go the immigrant visa route to remain legal. Of course she can stay within the terms of her I-94 and perhaps only return briefly to Australia for a visa interview. Perhaps, the difference is only a minor inconvenience. Exept for the travel expense, it's actually less expensive to do it that way. An immigrant visa fee is less expensive than AOS.

This is where I am not sure. My assumption is that she will be continuing her studies (Original poster? Is this so?). Does that, therefore, supercede returning to the US where there is a wedding in the future?

On the other hand, if she has finished her studies and wishes merely to return to wed and adjust status, then they should be planning on a family-based visa.

Unfortunately, it's too late for me to inquire at our international studies office today; the immigration lawyers with whom we work handle school-, employment- and family-based immigration; that is why I suggested she talk to her international studies office.

She will be continuing her studies after the wedding, so AOS is the appropriate pathway. Also, we do not want to have to separate while this is in process, which eliminates the immigrant visa option for us.

[pushbrk 12,761]

I am a U.S. citizen engaged to an Australian woman who is living in the U.S. on an F1 student visa. Our plan is to get married in August and then file an adjustment of status to permanent resident for her.

My understanding is that she cannot leave the country until her status is adjusted (or advanced parole is granted). We have not started any paperwork yet for her AOS or AP.

However, a family issue has come up and she really needs to visit her parents overseas next week. The sooner she can leave the better. Is there any way she can go without compromising her application? What is the risk that she wouldn't be able to re-enter the country?

Thank you for any advice.

But, she is currently here on an F1? Probably the best thing is for her to talk to the international office at her school - if they can't advise, they will certainly have access to lawyers.

They can advise until the cows come home but they don't deal with family visas at her school.

An F1 visa is not a family visa. She is already in the US currently. That is why I suggested she talk to her international adviser at her school. Although it is not completely apparent from the original post, it sounds to me like she didn't enter the US in F1 status to marry, but to go to school.

If she leaves now and plans remain the same, she will be entering with intent to use a student visa to marry and adjust status based on that marriage. As such, the AOS route will not be applicable, IMO. They'll need to go the immigrant visa route to remain legal. Of course she can stay within the terms of her I-94 and perhaps only return briefly to Australia for a visa interview. Perhaps, the difference is only a minor inconvenience. Exept for the travel expense, it's actually less expensive to do it that way. An immigrant visa fee is less expensive than AOS.

This is where I am not sure. My assumption is that she will be continuing her studies (Original poster? Is this so?). Does that, therefore, supercede returning to the US where there is a wedding in the future?

On the other hand, if she has finished her studies and wishes merely to return to wed and adjust status, then they should be planning on a family-based visa.

Unfortunately, it's too late for me to inquire at our international studies office today; the immigration lawyers with whom we work handle school-, employment- and family-based immigration; that is why I suggested she talk to her international studies office.

She will be continuing her studies after the wedding, so AOS is the appropriate pathway. Also, we do not want to have to separate while this is in process, which eliminates the immigrant visa option for us.

If she leaves before you marry, her next entry will include the intent to continue her studies but her current visa doesn't allow immigration. You clearly have a wedding planned and have stated the intent for her to immigrate based on the marriage. This intent will be present on her next entry. As such, whether you like it or not, your plans aren't legal, IMO. The spouse visa path will need to be pursued. I never suggested you separate for any longer than a matter of a couple weeks to go back, get a medical and visa interview then return. There's no reason for her not to continue her studies and she may remain here as long as her I-94 allows.

You might be able to get away with adjusting status but if the adjudicating officer puts two and two together, you are risking the consequences of visa fraud for attempting to circumvent US Immigration law.