Can she leave USA during AOS and risk triggering the 3 or 10 year bar?

[Little_My 464]

Yes, she could leave without submitting the AOS application and take the CR-1 spousal visa route instead, which would mean that her spouse would submit the I-130 and apply for the CR-1 visa for her. However, it is clear that she has overstayed (no matter what you think about the D/S-notation on her I-94) - but it's unclear to me for how long. If her SEVIS was terminated in April, then probably she has been out of status since then. This means that she is very close, or over, the 180-day mark which means she is now subject to at least a three-year ban to the US. If she leaves, this ban will trigger, and she would have to submit a waiver for that before the CR-1 can be issued.

The AOS route in the US is much easier, faster and safer (though more expensive as well). Nothing is stopping her from leaving, but the risks that come with that action will be hers to bear. If she takes the CR-1 route, she will be separated from her husband for months (around 9 months on average), plus the additional time for the waiver. I am personally not familiar with the waiver-process or the difficulty of getting it approved, but someone here will probably know more about that.

While I totally understand her need and want to participate in her sister's wedding, in this situation, due to her overstay, it is a big risk to take. You might think that D/S is the escape hatch here - but it's not. She has not followed the requirements of an F1-student, and has therefor violated the requirements of her visa.

Leaving now is a risk, no matter how you put it. Whether it is a risk she is willing to take is up to her and her husband.

[siasimba 9]

To OP... Very simple answer.

She should NOT leave for the wedding!

If you read everyone's post, NOT ONE single person recommends her to leave. We can analyze every word and sentence to 10,000% and twist it to the way we want to interpret it. Bottom line is that the risk is not worth the benefit.

Good luck!

[ceadsearc 516]

Agreed. If she has overstayed long enough to incur a ban if she leaves on AP (and it sounds like she has), then that ban will take effect regardless of how or why she leaves the country. The ban occurs no matter what, so it would still be in effect when filing for a CR-1.

[Tiggy-JIggy 0]

Personal opinion: For God's sake, it's only a wedding.

Ha ha. I couldn't agree more. These Koreans sure are headstrong people though! (And I mean that in the nicest possible way) heh heh

I think in the end, she has agreed to bow to the collective wisdom here and sit tight. Thanks to you, Sachinky, and everyone else for all the useful input. I think she wanted to be sure we were exhausting every possible avenue, before we give up and succumbed to the inevitable.

Wishing us all speedy resolutions of our immigration woes!

Edited October 16, 2011 by Tiggy-JIggy

[ceadsearc 516]

Ha ha. I couldn't agree more. These Koreans sure are headstrong people though! (And I mean that in the nicest possible way) heh heh

I think in the end, she has agreed to bow to the collective wisdom here and sit tight. Thanks to you, Sachinky, and everyone else for all the useful input. I think she wanted to be sure we were exhausting every possible avenue, before we give up and succumbed to the inevitable.

Wishing us all speedy resolutions of our immigration woes!

Good decision. I know it can't be easy. I hope her immigration process is quick so she can go back and visit whenever she wants!

[sachinky 465]

You're welcome. Wishing your friend well and a speedy end to her immigration journey.

And I understand the sentiments, when I was getting married (which was on rather short notice, any way) my mother was acting like I couldn't get married unless every cousin who lived in different parts of the globe were able to make it.

[greencardgo 0]

In life, it's all about priorities.Personally i would not risk it.When you decide on making your life somewhere, and such important papers are at stake, i think being at a wedding, even your sister's, is not that important.She'll get married anyways.When you can't, you can't.I hope you don't mind me playing the devil's advocate here.On the other hand, if it is so important for the bride to have her sister attending, she could always change the wedding date.In your shoes, i would not do it.I have been wainting patiently for 5 years to be able to adjust status, i did not move an inch, and won't until i hold the card in my hand.Good luck.

I was reading thru this thread and I saw your message...I have been waiting for 5+ years to AOS too:( not fun!!!! I'm on a F-1 visa. How was your case, did you run into any issues? I have never had any problems...being out of status and such.

Any info would be awesome:)

Thank you

[Tiggy-JIggy 0]

Update:

- she took my (and everyone here's) advice and did not leave the USA to return for her sister's wedding. It was a a bit sad on the day itself, but overall she is now glad she did not.

- she received her biometrics appointment for the New York Queens (USCIS Woodside, 6305 Roosevelt Ave) office within about 1 month of them receiving all her completed paperwork. Because I was able to advise her on the possibility of walk-ins, which I had come across here on these wonderful forums, she did indeed go and do the walk in in late December rather than wait until January. (They didn't seem too happy about it, but she made a sad face and bumbled out some reason why she really needed this to happen, as I had briefed her, and she got in)

- she is now waiting the next notification re: hopefully a call to come for the interview.

End of update.

Edited January 28, 2012 by Tiggy-JIggy