Adjusting from R1 to Special Immigrant (i-360)

[croutons 0]

Hi all,

My conundrum:

Currently at the end of a 5 year R1 visa. It will expire on Dec. 31st, 2011. I cannot renew it.

I have just filed the i360 form for adjustment of status.

Problem is, my R1 will definitely expire before I get approved for the i360.

So... Do I need to adjust my status? Which status can I adjust to? Am I allowed to leave the country? What if I am out of the country when I get approved for the i360?

Thank you all in advance!

[CC90 90]

What type of special immigrant did you claim to be?

[croutons 0]

What type of special immigrant did you claim to be?

A religious worker.

[CC90 90]

I'm going to assume that you read and meet all of the requirements to be a special immigrant religious worker.

Assuming it is approved, you will then have basis to file an I-485. The current processing timeline seems to be 5 months. Since I'm not sure if this is considered an employment based petition for the purposes of 245(k) relief, you may have an issue if it is not approved by the time your status expires AND you file your I-485. If 245(k) applies (check with other members or a lawyer), then you should be able to successfully file an I-485 even though you've been out of status for a few months; 245(k) basically gives you relief when adjusting status if you've been out of status for less than 6 months. Since this specifically applies to employment based petitions, I'm not sure if you would be granted that same relief.

You probably should have filed for change of status to B2 to give you another 6 months of authorized stay and then file the I-360. (This is not something you can do now.) You should not leave the country on an R1 since you have clearly demonstrated your intent to immigrate; you will likely not be allowed back into the country in the future with any non-immigrant visa.

Edited October 17, 2011 by CC90

[CC90 90]

You could also leave the country now and wait until it is approved. You will not likely be allowed to enter as an R-1 while it is processing. You will then need to transfer the approved petition to the consulate where you would be receiving your immigrant visa.

Since I don't think you are eligible to get the 245(k) (but I'm not 100% sure), AND if you are VERY confident that you will be approved for the petion, you can leave before your R-1 status expires. This will prevent any unlawful presence. When it is approved, you can tell USCIS to send the petition to an overseas post to issue you an immigrant visa. An I-824 is used to do this. If you do leave, you will not "adjust" status, but instead apply for an immigrant visa, which will give you a green card upon entering.