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.

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.

How is the spouse visa path different than the AOS path? Are there significant differences or are they minor? I'm not sure I understand what the spouse visa path entails. Thanks for your continued help.

[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.

How is the spouse visa path different than the AOS path? Are there significant differences or are they minor? I'm not sure I understand what the spouse visa path entails. Thanks for your continued help.

They both start by filing an I-130 but the major difference is that a visa path includes a visa, which includes a medical and visa interview abroad. The Guides here are very helpful. Please start there by simply clicking on the word "Guides" at the top of any page.

Edited June 21, 2008 by pushbrk

[rebeccajo 14]

Go speak to an immigration attorney before you start bending what she should and shouldn't say at re-entry. That's called 'misrepresentation' and can cause her to be permanently banned from a life in the US. As a student or as a wife.

[KimandRuss 0]

You're getting good advice here but I think you may still be somewhat confused...

If she didn't have to leave and you marry and adjust status in August as is the plan then you would be fine as long as she did not have the intent to immigrate with her initial entry and F1 status. She was already here on her student visa... you decided to marry... everythings peachy. There was no intent to 'stay' ...with that entry.

Because she has to leave, she can not just enter on a student or visitor visa with plans to stay. That is immigrant intent and it is visa fraud. As Rebeccajo stated, you are playing with fire if you choose to misrepresent the facts and risk very serious consequences.

What it comes down to is that you can not enter the US on just any visa with the intent to immigrate. If she was already here.. you decided to marry and adjust status ...then fine. But now she has intent to stay....your wedding is planned just weeks after her re-entry. If it is proven that she had intent upon entry at the AOS stage she can be banned from the U.S.

Here's a good link for you

[rebeccajo 14]

FYI - the 30/60/90 day 'rule' is not a 'rule'.

It is an anology that was used one time in case law, and has since become some sort of mythical 'yardstick' that adjudicators use.