AOS from F-1 to PR on expired visa?

[ducky06 0]

My fiance (F-1 student visa holder, Guatemalan-German) and I (USC) have a question about what to do! We've been dating three years, knew almost all along we were meant to stay together. I just came back from an extended volunteer experience in Central America. Knowing I would be coming back we planned a wedding celebration for this summer and I feel really committed to that (lots of the logistics are in place, although we have not yet sent invitations)... not least of which because a dear family member of mine is terminally ill and I would love for him to see us married in the 4-5 months he has left.

My fiance is from Guatemala. He is half-German, half-Guatemalan, is a passport-holding citizen of both countries, but grew up in Central America and his US visa is in his Guatemalan passport. He has been in the US for seven years on an F-1 student visa, while he worked on his Master's and later his PhD, which should be done by the end of summer.

The complication is that since he is about to finish his PhD, he has an offer for a post-doc for the fall semester. The uni will not sponsor him for an H1-B1 visa since it is such a short time, but they suggest he apply for OPT under his F-1.

The problem is that to get and keep the post-doc his boss wants him to be traveling to Central America to help graduate students in the program during the summer/fall (until Dec 2012), and the visa in his passport expires late June 2012. Since he is under a student visa we understood he is not out-of-status until 60 days after he finishes his PhD, but he would have to apply for a visa extension in order to leave the country and come back after June.

But it seems very risky for him to apply for an F-1 extension, professing non-immigrant intent even though we intend to marry and he would rather stay in the US and avoid going back to Guatemala immediately, if possible. While we both like Guatemala and want to live there some day, I'm also eager to be with my family here in the US in the next year and above all else we want to be together. And even if he actively preferred to go home I think he might have trouble proving this at this point.

The last time he entered the US on the F-1 visa was January, and at that point we did not have any clear idea to marry and adjust status. We know now after consulting a lawyer that any marriage within 30-60 days of entering the country on an F-1 visa is a big red flag.

But... Are there options to keep our summer wedding date and have him take the post-doc? ....

(1) Could he apply for OPT, but convince his adviser to let him do all his traveling before June 2012 in order to get back in the country on the visa? And then not leave the US and work on campus until December 2012 under OPT, while married? And afterward either apply to adjust status or go back to Guatemala for consular processing?

(2) What if he holds off on international travel at all this summer and we get married ASAP (next month) in a small legal ceremony, waiting for a big celebration later in summer, but with the quickie "pre-wedding" being able to get ahead on his 90-day wait for his EAD card and advanced parole, These he would get maybe late August or early September in time to start the post-doc. Or would this be big a red flag?

(3) Would it help if we cancelled our wedding plans? I'm not sure that it would help his case for the F-1 visa since we have the intention to stay together whether we're married or not, which might look like surefire immigrant intent to them. I don't want to do this but I guess that way he would always be able to offer to go back and do consular processing for a fiance visa after his post-doc.

What do you all think? Other options I haven't thought of? Go talk more to the lawyer (she's been busy lately!)

Thanks very much for your attention!

ducky

[Grant PDX 183]

I would go with your option 2. It might raise some flags, but he's been here a long time, with multiple ins and outs, and his return was based on school, pretty obviously. It certainly doesn't look to me that he entered solely to stay, marry, and adjust status. I would do that, and apply for AOS ASAP.

Best of luck, whichever way you go.

[ceadsearc 516]

I agree. Number 2 is your best option and he won't have to worry about a OPT or travel constrictions once approved. He obviously didn't get the visa just to marry you so even if you marry after a recent entry, I doubt it would be a red flag since he has been going to school here for years.

[Little_My 464]

Agree. I think the easiest and least risky option for you now is to just get married as soon as you can, and fiel for AOS. We did the same with my husband - I was here on an F1 and was about to graduate in May 2011. Our wedding was planned for July that year. We got married in a civil ceremony at Manhattan city hall in Feb 2011, and filed for AOS in March. We still went along with the original plan of the more traditional and bigger wedding ceremony in Finland, which we had in the end of July. The only complication we had was that I had to go to Finland in June right after graduation to do all the preparations for the wedding, and our interview got scheduled for July 20, a week before our wedding in Finland.. We both flew back for the interview (I returned using my AP), stayed in NYC for literally one day, and flew back to Finland the day after the interview. It was of course an added expense, but still a better option than trying to re-schedule the interview with the risk of that backfiring and us getting denied for being a no-show..

I don't see any red flags in marrying now and filing for AOS. You've been dating for years, he obviously did not originally get his F1 for immigration purposes, and it will save you the cost of OPT and the hassle of his visa expiring. It would be risky for him to continue leaving and returning to the US with a non-immigrant status, such as F1 or F1/OPT, as he now does have immigrant intent, and it could be a matter of time when he is asked a tricky question at POE about his intents and plans. If you can file for AOS by end of April, for example, he will most likely have his AP and EAD by end of July, and his GC very soon after that.