Change of Status from F1 now that the I-130 is approved

[Fiffi 0]

My husband and I got married in December of 2009 while he was on an F1 student visa. He took a leave of absence from the university (spring semester) when his Dad's illness took a turn and ultimately he passed away. When we tried to re-enter the U.S. after the funeral he was forced to withdraw his application for entry.

I filed the I-130 immediately (NOA 3/3/10). of course, my address was in the U.S. and his was in Ireland. We received approval today (7/3/10). In the meantime he was able to get his student visa re-issued and we traveled home to the U.S. What do we do now? Do I file a change of address for my husband with the NVC? Will they let us go through the rest of the green card process in the U.S. or will he have to go back to Dublin? Or, do we simply file a change of status from F1 to IR1 or CR1 (what's the difference between IR1 and CR1 anyway?)

Guidance much appreciated!

[trailmix 77]

Hi,

He will have to go back for his medical/CR1 interview.

You should file a change of address if he can no longer receive mail at his listed address (ie: if it is not a relatives house etc, so no one can receive/open the mail for him). Otherwise I would just leave it, less hassle.

CR1 = conditional resident. The couple has been married less than 2 years. After the visa is approved and the beneficiary immigrates to the U.S. you will file to lift the conditions on his green card, ie: you will prove that you have a bonafide relationship at that point.

IR1 = immediate relative. The couple has been married 2 years or more. The beneficiary receives a 10 year green card and does not need to lift any conditions.

[sachinky 465]

If you've been married for more than 2 years, you will be given a IR-1 (Immediate Relative), and a CR-1 (Conditional Residence) if the marriage is less than 2 years.

I'd contact USCIS immediately and see if you can file the I-485 concurrently. That way he will be able to adjust his status to PR from a F-1.

Otherwise, you will have to go through the NVC process and he will have to interview in Dublin.

[VanessaTony 3,567]

** moved from "Adjustment of Status (Green Card) from Family Based Visas" to Effects of Major Family Changes on Immigration Benefits as this is a more appropriate location**

[payxibka 10,047]

** moved from "Adjustment of Status (Green Card) from Family Based Visas" to Effects of Major Family Changes on Immigration Benefits as this is a more appropriate location**

Except all they need do is file the I-485 in order to adjust status from in the USA, since the alien is already here.... no need to go "home" for consular processing

[VanessaTony 3,567]

Except all they need do is file the I-485 in order to adjust status from in the USA, since the alien is already here.... no need to go "home" for consular processing

In either event it wasn't in the proper place as it wouldn't be a family visa "adjustment". As the question wasn't directly about AOSing, but rather what to do now that they've had this change of plans and with an approved I-130, then this is the appropriate location.

If the question was actually AOS related, rather than "oh shizer what now?" then I'd have moved it to AOS (Other) as that's what it is, not AOS (family).

[Darnell 8,479]

if solely the I-130, sorry, must do medical exam and interview in ireland. Can wrangle 'appointment in christmas break time' if you pay attention to the calendar, submit things to NVC a bit slower than most. Or Go Fast, at NVC, for possible interview in August (but don't count on that, ya ? )

if I-130 and I-485 filed concurrently, ya, AOS occurs in USA, is not any 'visa', per se, is a 'residency status' instead.

if you'd like to keep the I-130 in play, you've got some work to do at NVC -

DS-230 - http://travel.state.gov/visa/immigrants/info/info_3190.html

I-864 - http://travel.state.gov/visa/immigrants/info/info_3730.html

General NVC stuff - http://travel.state.gov/visa/immigrants/info/info_1335.html

and a mini-how-to for using the online payment portal - http://www.visajourney.com/forums/topic/221785-ds-3032-slowdown/page__view__findpost__p__3560467

Good Luck !

[payxibka 10,047]

In either event it wasn't in the proper place as it wouldn't be a family visa "adjustment". As the question wasn't directly about AOSing, but rather what to do now that they've had this change of plans and with an approved I-130, then this is the appropriate location.

If the question was actually AOS related, rather than "oh shizer what now?" then I'd have moved it to AOS (Other) as that's what it is, not AOS (family).

This is an adjustment of status issue from F-1

Moving to:

Adjustment of Status from Work, Student, & Tourist Visas

This forum is to discuss the process of filing for Adjustment of Status (AOS) from a Work, Student or Tourist Visa.

From:

Effects of Major Family Changes on Immigration Benefits

This forum is dedicated to topics such as but not limited to divorce or even the loss of life of a petitioning relative (Family Member) and how it may affect immigration related benefits.

Edited July 3, 2010 by payxibka

[payxibka 10,047]

if solely the I-130, sorry, must do medical exam and interview in ireland. Can wrangle 'appointment in christmas break time' if you pay attention to the calendar, submit things to NVC a bit slower than most. Or Go Fast, at NVC, for possible interview in August (but don't count on that, ya ? )

if I-130 and I-485 filed concurrently, ya, AOS occurs in USA, is not any 'visa', per se, is a 'residency status' instead.

if you'd like to keep the I-130 in play, you've got some work to do at NVC -

DS-230 - http://travel.state.gov/visa/immigrants/info/info_3190.html

I-864 - http://travel.state.gov/visa/immigrants/info/info_3730.html

General NVC stuff - http://travel.state.gov/visa/immigrants/info/info_1335.html

and a mini-how-to for using the online payment portal - http://www.visajourney.com/forums/topic/221785-ds-3032-slowdown/page__view__findpost__p__3560467

Good Luck !

Consular processing NOT required... they file the I-485 and get the i-130 moved back to the USCIS from NVC...

There is NO requirement to file the I-130/I-485 at the same time to do AOS....

Read the first sentence in "A" on Part II of the I-485. "An immigrant visa petition giving me an immediate visa number that has been APPROVED (Attach a copy of the approval notice)"

Edited July 3, 2010 by payxibka

[alanakaja1980 1]

Consular processing NOT required... they file the I-485 and get the i-130 moved back to the USCIS from NVC...

There is NO requirement to file the I-130/I-485 at the same time to do AOS....

Read the first sentence in "A" on Part II of the I-485. "An immigrant visa petition giving me an immediate visa number that has been APPROVED (Attach a copy of the approval notice)"

Thats correct. That's kind of what we did, only we filed the I-485 one month after the I-130. I would like to advise others NOT to do it this way as I have had lots of hassle (see my thread - POSSBLE DENIAL)

[Fiffi 0]

Consular processing NOT required... they file the I-485 and get the i-130 moved back to the USCIS from NVC...

There is NO requirement to file the I-130/I-485 at the same time to do AOS....

Read the first sentence in "A" on Part II of the I-485. "An immigrant visa petition giving me an immediate visa number that has been APPROVED (Attach a copy of the approval notice)"

Thank you!!! This is exactly what I was looking for. We will file the I-485. We just got the I-130 approval email notification yesterday, so should we ignore the document packages that the NVC send us?

[payxibka 10,047]

Thank you!!! This is exactly what I was looking for. We will file the I-485. We just got the I-130 approval email notification yesterday, so should we ignore the document packages that the NVC send us?

Yes, if you respond to NVC they will start the consular process

[VanessaTony 3,567]

Payxibka has been suggesting you just AOS from the F1. This is entirely possible, HOWEVER this is usually done without intent. Your husband quite clearly had immigrant intent when he came to the US on his F1 visa. This is IMMIGRATION FRAUD and it is against the VJ terms of service to encourage you to commit immigration fraud.

Your problem is, had your husband never applied for the I-130, he would have had the benefit of the doubt. If he was a student, and you decided to get married while he was here in the US and then AOS, no issue.. BUT you were MARRIED when he entered, you had already STARTED the immigration process before he entered the US and now you're planning on committing immigration fraud by adjusting status whilst in the US, after entering on a NON-IMMIGRANT visa. After most likely signing something when he applied for the student visa stating he didn't have immigrant intent (again if you weren't married at the time, and hadn't already started an immigration process, this might otherwise be okay to AOS in the US).

Personally given your situation I would return to his home country to process the visa there. Doing anything but that is VERY risky. You have multiple red flags on your case. Maybe someone else can explain to me how this isn't risky, how this isn't immigration fraud. Maybe I'm missing something... but immigration fraud is entering on a non-immigrant visa with immigrant intent (among other things) and you check TWO very big boxes on an immigration fraud indicator.

Edited July 5, 2010 by Vanessa&Tony

[Kathryn41 3,205]

I think the OP is actually trying to find the correct 'next' step in this process given their unusual circumstances and not intending to commit visa fraud. It does not appear that they had immediate immigrant intent when he re-entered the US on the new F-1 as they were prepared to go the Consular I-130 route for a CR-1. They were able to get permission for him to re-enter the US on a student visa and now the I-130 has been approved stating that there is now an immigrant visa number available for his case. The question is do they now do the AOS portion of the process as part of the CR-1 process out of the country or do they do it as a separate AOS from the F-1 status from within the country since he was granted permission to re-enter the country on a valid visa while waiting for the I-130 to be approved. It is a very similar situation to being here on a K-3 -legally allowed to enter the US as a non-immigrant while an immigrant application is under way.

Since there seems to be some ambiguity, I suggest that there are two options you might want to investigate: either a consultation with a competent and knowledgeable immigration attorney who is familiar with both the CR-1 and the AOS from a non-family visa basis, or make an infopass appointment at the closest USCIS office and meet with an immigration official, asking USCIS directly what is the best next step to pursue. You can make the Infopass appointment on line at http://www.uscis.gov . If the immigration official says that under the circumstances you can file for the AOS from within the US, then go ahead. If they say to continue through the Consular process, then send back the information to NVC.

Good luck.

Edited July 5, 2010 by Kathryn41

[Fiffi 0]

Wow! We had no idea we were potentially doing anything improper. We fell in love and got married while he was on an F1. We traveled back and forth to Ireland for our wedding and Christmas on his F1 and had no problem. If it hadn't been for his father's passing and needing an leave of absence from ASU, he would still be on the F1, as it was a five year visa. His F1 was revoked as we tried to come home because his sevis record correctly showed that he was not enrolled in the Spring semester. At the time, the USCIS officer in Chicago told us to apply for another F1 for fall semester, and that would be the quickest way for him to get home. So, that's what we did. I thought it would be wise to go ahead and file for permanent residency in the meantime since we plan on making our permanent home in the U.S. and we would never want to be separated for months at a time again.

We don't know any immigration lawyers in Southern California, nor can we really afford one. We can make an appointment to see a USCIS officer.

Has anyone else ever found themselves in this position? We are simply trying to figure out the CORRECT next step. Should I explain the situation in the I-485 packet cover page? Should we still apply for the AOS as an F-1 visa holder that has an I-130 approval? Or, do we go the consular route? Of course, we would rather go the AOS route, as my husband starts school again on 8/19 and we are finally reunited, but we want to do the right thing. We certainly wouldn't want to risk being separated long term again.

We appreciate the help!