F-1 to AOS

[sorbolo 0]

Hi everyone,

after my first post I've done some more research and have now couple of more doubts. I'd introduce my story with a little bit of background which will be helpful to try to solve my doubts.

1) Came in US for a 2 year graduate program in June 2009 on a F-1 visa

2) Meet my current fiancée in August 2009 (also her a graduate student)

3) Dated until now and lived:

a) In two different apartments in the same apartment complex from the beginning of our relationship (Aug 2009) till September 2010

b) In my apartment from September 2010 to December 2010 (she graduated and her lease expired and so she could move in)

c) In two different apartments and different states (Carolina and Texas) from December 2010 onwards (I have a job offer for July 2011 in Texas and thus, since she is graduated she looked for and found job there so we can be together from May 2011, when I graduate)

d) Planning to move in together in her apartment in Texas in May 2011

4) We do not have any shared joint accounts or such "financial" proofs of our relationship but all my and her friends can sign a letter plus all the trips we took and pictures we have taken

5) I will request an OPT in mid February

6) We will go for a trip abroad from 5-20 March

7) We thought about marrying in courthouse at the end of April

8) And file for AOS at the very beginning of May

My employer is offering a sponsorship for an H1B visa...but we would rather go the route of AOS if that doesn't affect my ability to work for my employer. The reason why of this preference is simple: dealing with all the AOS paperwork before I start to work.

So here are my doubts:

1) I read everywhere that you must not come into US with the intent of immigrate if you are under a non-immigrant visa, otherwise you will be accused of visa fraud (so far so good and I understand it). One of the rough criteria to assess if there is such intent is the time elapsed between the original (F1) visa issuance, marriage and request for AOS.

Now: I clearly didn't come with the intention of immigrate since I didn't even know my fiancée before coming here and my visa was issued 2 years ago. However if we want to marry in April, we will be just back from our international trip since 1 month...does that reset the clock count?

2) Would be there a problem to file the AOS request when we are just starting to live together (beginning of May)? We'd like to file as soon as possible because of the dealing with all the paperwork before starting to work. At that point we still wouldn't have much financial history together but we have all the proof of our bonafide relationship we talked before (pictures, hotel receipts, friends letters...)

3) Since I'll have my OPT I'll be able to work for up to a year after gratuation, then, with the new EAD that I'll be given with my AOS request i should be able to work for even longer (thanks to previous post answer). Now my question is: how long does the new EAD last?

4) What happens to my ability to stay and work in the US if our request of AOS get stranded or even denied?

At the end of the day my biggest doubt is whether is advisable to avoid to file H1B and get married now and go on with the AOS or file for H1B and be impossibilitated to marry and file for AOS for basically all 2011 (until I have the H1B stamp in October) because there is a non-immigrant visa request going on...

Thanks a lot to everyone, sorry for my lengthliness but I preferred to be as complete, detailed and clear as possible

[Harpa Timsah 13,258]

1) You have read and know the rules. I have not seen on this forum a consensus about how to define intent for someone who has already been long-term in the US on a valid visa and takes a trip and them comes back to AOS. Some say it goes back to original F-1; others say it is most recent entry. I have argued that intent becomes more difficult to define for people who have already been in US long-term, and have gone up against many others arguing otherwise. So far I have not seen a detailed explanation of the rules based on the INA or any other immigration document, so my position is based on logic, not law, and sometimes the two don't meet Perhaps someone this time will dig in the INA for you. That kind of information might also be redacted from the public, however. I think you should be fine taking a trip, but that is admittedly not based on rules I have seen.

2) Not a problem to be newlyweds and file AOS. Gather as much evidence as you can, and continue to gather for the interview.

3) The new EAD lasts a year, but your GC gives you work permission and there will be no need to file for EADs anymore once you get that. The whole AOS process has been taking about 3-4 months, so your old EAD would probably suffice. No harm in filing for a few one with AOS though; it's free.

4) If you get denied you will have a whole appeals process available to you, because you entered on a valid visa. Cases are generally denied for fraudulent marriages or because the immigrant is inadmissible (crimes, etc). If these don't apply to you, then there is no real reason to worry.

I don't really understand your last sentence.

Hope that helps. Good luck.

[sorbolo 0]

Harpa Timsah, thank you very much for your prompt and very completed and detailed reply.

I am sorry for the confusing language of my last point. I try to explain myself little bit better: my biggest concern is to loose my future job due to the fact that at some point I have an interruption between my future EADs (I know, maybe it's an irrational fear), I do not want to take this chance at all.

Which do you think is safer (if there is any difference):

1) Let my employer apply for H1B, have to go back to my home country after Oct 1st to get the stamp and then get married afterwards

2) Apply straightly for AOS while on my F1?

Thanks a lot again!

[Harpa Timsah 13,258]

If you apply for AOS at the beginning of May, then you should have a new EAD by July. You should also have the GC by July or August. You said you are getting your OPT EAD in February which is good for a year? You're fine. If something went wonky with your AOS and it took years (which won't happen, but let's pretend) then you can renew your EAD indefinitely based on pending AOS.

[sorbolo 0]

Harpa Timsah, thanks again for the prompt reply!

I know that common sense and law are not always the same thing (e.g. if I came here to study, then met my girlfriend here, and after 2 years, with a job already lined up we decide to get married...why there should be any issue if I went abroad a month before the marriage?)...that's why I am asking so many questions...because based on common sense it is all clear in my head but I am pretty sure that is never as simple as it seems!

I am still not clear to oncouple of things:

1) is the marriage itself which triggers the "immigration purposes" or the fact that you apply for AOS?

I try to explain myself better with an example: if I get married in US after one month from my trip abroad but ask for AOS after, let say, 6 months, will be there a problem AOSwise with my entry in the country?

2) I've read a lot about this 30-60-90 days rule of thumb...but really not clear to what those 30-60-90 days refer to: the marriage cerimony or the AOS request?

[Maxximus1074 14]

Here's my thoughts regarding your question if its better to file for a H-1B or to get married and file AOS, since Harpa already explained so nicely that there should be no problem with the EAD and OPT, future work.

H-1B Visas are hard to get, not only do you need an employer who is willing to file and sponsor all that paper-work for you, but also be convincing towards USCIS that you are the one who can only do this job. Also, there is a limited amount of visas per year and to my knowledge regional divided on from which countries/continents how many applicants will get a H-1B granted.

I don't think there is a big problem neither regarding the last entry and your marriage, in my opinion it really depends on when you used your status for the first time to enter the US, aka the student visa's initial arrival.

Am a former F-1 myself and had no problem adjusting my status even with being out of status for some time.

As Harpa mentioned, as long as there is no criminal background, no working under false pretenses or identity there is no doubt why you shouldn't become a permanent resident. And with you two even living together after one of your leases expired already is a nice record for a bona fide marriage.

The only thing you have to keep on mind, once you file the paperwork for AOS you will have to stay in the US until the process is complete and your green card has been approved, currently average 4 - 4 1/2 months from initial mailing, unless you file for advanced parole with a valid reason why you have to leave the US during this process.

...these are just my thoughts, wanted to share them with you.

In either way, hope you have a good, smooth immigration journey

Maxximus