Does my plan/timeline sound like it will work ok?

[lp2002 0]

I am a F-1 currently on my OPT extension - I have an EAD that is valid until July 14, 2011. I married a US Citizen this summer, and I'm planning on filing my AOS in the new year. I just want some opinions on my plan, so see if anyone has sees any issues I should deal with now before it's too late.

Essentially, I need to be out of the US for Christmas, and then again for a family vacation from March 5-12, 2011. Thus, I don't believe I can file before I return from my March vacation, because between now and then I won't have a long enough time-period that would allow me to apply and get Advanced Parole (because I am also leaving the country over Christmas - I'm under the impression that AP takes 3 months to process).

So, my question is: If I have all my application materials in order and ready to go, and I apply immediately when I get back from my vacation in March (so around March 13th, 2011), can I safely plan on having my new EAD in hand before my OPT EAD expires on July 14th? That gives me four months for the new EAD to be issued. I'm not too concerned about the overall amount of time it takes to get my AP or actual AOS completed.... I just cannot lose my employment status (because I currently have a job in the US).

Does anyone see any problem with my plan? Does that sound safe? I understand that no plan is 100% foolproof, and that something could always go wrong... but if my application were to proceed along the usual course, should my transition between EADs be seamless?

Thanks!

[zooch76 9]

I hate to say it, but you can't leave the country for Christmas or vacation until you file AOS and either have your GC or travel docs. If you do, you run a great risk of being denied reentry into the USA. Now that you are married to a USC, if you leave the country and re-enter before filing AOS it shows that you have an intent to immigrate, which means you will be denied entry into the USA.

You can always go through with your plan as stated and just not mentioned to anyone that you are married, but of course you run the risk of getting caught. Assuming you are traveling with your wife you will probably get a little extra questioning at the border (since she is a USC and you are not) and if it comes up that you are married (or even engaged) you'll be denied entry.

If I was you I'd file your AOS ASAP and if you're lucky you'll receive your GC by March and can vacation with your family then. Enjoy your holidays in the USA.

[Boiler 45,941]

F1 is a non immigrant visa.

Safe bet is to get AP first, then travel.

Otherwise it is a toss up, you might be lucky, you might not.

[lp2002 0]

I actually have left the US several times (going home to Canada) since I got married in August, and I've never had a problem coming back. I'm aware of the non-immigrant intent rule, but that applies to what my intent was when I first entered on my F-1 visa (in 2007). As long as I don't say to a border agent that I'm planning on applying for AOS, then as far as they're concerned, I don't have immigrant intent. Right?

[Harpa Timsah 13,258]

I don't think any of us really understand the intent rule perfectly. I also think this is more of a problem with AOS from tourist visas etc. I could argue that she is coming back to work at her job, which she has permission to do. I don't think it's exactly that you didn't have intent when you first applied for your visa... because if someone used a tourist visa they obtained years ago to bypass the normal immigration route, that is no good. But coming back to do your job... I mean I guess you could file for spousal visa from abroad but since you already live here you would just wait here and work and THEN be forced to go to your country to interview... and really... that's silly.

All I can say is be honest with the CBP when you come back. I really think it should be fine, but I am not sure the legalities here and I don't think anyone does... I don't think the exact protocol is available to the public.

If someone can link me to specific information that says otherwise, then by all means, do so. Good luck.

[Boiler 45,941]

You have entered not intending to stay.

At some point in your plan you do intend to stay. c 13th March.

If you do intend to use this route, probably not a good idea filing immediately after entering on a non immigrant visa.

[Harpa Timsah 13,258]

If you do intend to use this route, probably not a good idea filing immediately after entering on a non immigrant visa.

Yeah, that's probably good advice.

[Darkarma 2]

Well there is a question of pre conceived intent. Even though when the OP got his F-1 visa there was no intent to immigrate so he got his visa. Or else he would have been subjected to 212g. Now he is married, on F-1 technically it is always possible that he does not want to live in the US. May be wife is getting her canadian GC. Thus i dont see a problem at the CBP. But the OP has to understand that travelling abroad on a F-1 OPT is risky. He was lucky a couple of times, but cant say when sweet luck runs out. Even is he is stopped he can always do a counselor processing. But he'll losse his job here.

Edited November 4, 2010 by ravi_niu

[Neal851 3]

Well there is a question of pre conceived intent. Even though when the OP got his F-1 visa there was no intent to immigrate so he got his visa. Or else he would have been subjected to 212g. Now he is married, on F-1 technically it is always possible that he does not want to live in the US. May be wife is getting her canadian GC. Thus i dont see a problem at the CBP. But the OP has to understand that travelling abroad on a F-1 OPT is risky. He was lucky a couple of times, but cant say when sweet luck runs out. Even is he is stopped he can always do a counselor processing. But he'll losse his job here.

Yes,ravi_nilu is right. He was lucky in his previous visit to Canada.If u have job on OPT then sometimes they allow to re-enter or sometimes not.Its totally depend upon on the IO.But now the OP said that his first EAD is going to expire then the chace of denial is more in next visit.The CBP may be stop him this time.If he is denided then he can do DCF from canada but he will loose his job.

[Deputy Purple 1,294]

I'm aware of the non-immigrant intent rule, but that applies to what my intent was when I first entered on my F-1 visa (in 2007). As long as I don't say to a border agent that I'm planning on applying for AOS, then as far as they're concerned, I don't have immigrant intent. Right?

And if they ask "Are you planning to AOS since you're married to a US Citizen?" how would you answer?

If you answer truthfully do you believe they'll:

A) Allow your entry.

B) Turn you away and invalidate your current Visa as you now have immigrant intent.

Why play games with your future?

If you really believe the first part of the quote then you wouldn't have followed it up with the second part.

[Harpa Timsah 13,258]

Yes,ravi_nilu is right. He was lucky in his previous visit to Canada.If u have job on OPT then sometimes they allow to re-enter or sometimes not.Its totally depend upon on the IO.But now the OP said that his first EAD is going to expire then the chace of denial is more in next visit.The CBP may be stop him this time.If he is denided then he can do DCF from canada but he will loose his job.

You guys are crazy. A person with a work visa can leave the country for a vacation and return. People with work visas are not corralled here forever like working mules. A US company would have a fit if their employee went for a short holiday and they were denied reentry for using their visa properly. People just love to cry fraud on this site; it justifies their own immigration anguish in some way. And what really makes me mad is the people who like to call fraud the most are the people who have done illegal things themselves... usually past overstays/illegal work.

[Neal851 3]

You guys are crazy. A person with a work visa can leave the country for a vacation and return. People with work visas are not corralled here forever like working mules. A US company would have a fit if their employee went for a short holiday and they were denied reentry for using their visa properly. People just love to cry fraud on this site; it justifies their own immigration anguish in some way. And what really makes me mad is the people who like to call fraud the most are the people who have done illegal things themselves... usually past overstays/illegal work.

Hi dude..we are not crazy..it seems that you are. First of all,he has not work visa(like H1B).He is on OPT period so as per rules after completion of study he has to go back to his country.But if one wants to do some experience in his field of work then he can apply for EAD. And once OPT started,and if you want to leave the country then after at re-entry the Immigration officer can stop him.This happens many times,even it was happen with some of mine classmates in previous year. So my friend ,its not work visa ,there is no gurantee that you can come back to usa on OPT period.

[zooch76 9]

You guys are crazy. A person with a work visa can leave the country for a vacation and return. People with work visas are not corralled here forever like working mules. A US company would have a fit if their employee went for a short holiday and they were denied reentry for using their visa properly. People just love to cry fraud on this site; it justifies their own immigration anguish in some way. And what really makes me mad is the people who like to call fraud the most are the people who have done illegal things themselves... usually past overstays/illegal work.

He's not just a random guy on a work visa - he's also married to a USC. That could throw up some big intent flags with the IO and he could get denied entry based on that. It's one thing if he was single but as you know, entering the country with intent to immigrate is illegal.

[Neal851 3]

He's not just a random guy on a work visa - he's also married to a USC. That could throw up some big intent flags with the IO and he could get denied entry based on that. It's one thing if he was single but as you know, entering the country with intent to immigrate is illegal.

Yes you are right,and 1 more thing he is on OPT ,its not work visa.

[Harpa Timsah 13,258]

So? One can travel on F-1 visa and on OPT. Furthermore, what if he/she didn't want to immigrate to the US? What if OP and spouse wanted to move to Canada after the OPT is over? Being married to a USC does not mean you get denied entry to the US. The OP should be honest at the border, but to say they "got lucky" taking their vacations is false.

Again, if anyone can link us to some specific information regarding intent and F1 - OPT, please do so.