Wife (non USC) entered on F1 visa and now applying for AOS

[zeveljones 3]

I'm a bit confused and somewhat concerned after reading some things on the internet. I'm hoping someone here can help me fully understand the issue so I know where my wife and I stand.

Here's the thing...

I'm a US citizen. My wife is not. We were married 6 years ago while both living overseas. Last summer we moved to the US as my wife had been accepted to a special 1-year academic program. She entered the US on an F-1 academic visa.

Now the academic program has ended and basically she has until June 30 to leave the US, since her I-94 is valid only for Duration of Status (plus the 60 day grace period).

We recently decided to stay and live in the US. I've found full-time work here in my field and we're happy here. So we're now trying to quickly file for her green card and the whole Adjustment of Status package. As I understand once these are filed, she will be legally allowed to remain in the US while her petition is being processed and decision is pending.

From what I've been led to understand - this is not a "standard" situation for greencard applications for spouse, which would normally be when the spouse is overseas (not in the US) and then the US citizen brings his/her spouse on a K-3 visa. I've read that in cases such as ours - in which my wife's entrance to the US was not on a K-1 visa - there can be complications if she chooses to travel out of the US later. I've read things about a 10-year waiting period... I'm sure this doesn't apply to us somehow. It just seems absurd. But I want to make absolutely sure, we're going about this the right way.

This all came up while I was researching about what exactly the i-131 form is and read some things on the internet that kind of freaked me out. Like this for example:

http://www.justanswer.com/immigration-law/6gfl0-hi-question-form-i-131-wife-immigrant.html

Thanks for any clarifications on this matter

[Inky 1,111]

Not adjustment of status from a family based visa. Moving to adjustment of status from work student tourist visa.

[MrsNotBonJovi 18]

I'm a bit confused and somewhat concerned after reading some things on the internet. I'm hoping someone here can help me fully understand the issue so I know where my wife and I stand.

Here's the thing...

I'm a US citizen. My wife is not. We were married 6 years ago while both living overseas. Last summer we moved to the US as my wife had been accepted to a special 1-year academic program. She entered the US on an F-1 academic visa.

Now the academic program has ended and basically she has until June 30 to leave the US, since her I-94 is valid only for Duration of Status (plus the 60 day grace period).

We recently decided to stay and live in the US. I've found full-time work here in my field and we're happy here. So we're now trying to quickly file for her green card and the whole Adjustment of Status package. As I understand once these are filed, she will be legally allowed to remain in the US while her petition is being processed and decision is pending.

From what I've been led to understand - this is not a "standard" situation for greencard applications for spouse, which would normally be when the spouse is overseas (not in the US) and then the US citizen brings his/her spouse on a K-3 visa. I've read that in cases such as ours - in which my wife's entrance to the US was not on a K-1 visa - there can be complications if she chooses to travel out of the US later. I've read things about a 10-year waiting period... I'm sure this doesn't apply to us somehow. It just seems absurd. But I want to make absolutely sure, we're going about this the right way.

This all came up while I was researching about what exactly the i-131 form is and read some things on the internet that kind of freaked me out. Like this for example:

http://www.justanswer.com/immigration-law/6gfl0-hi-question-form-i-131-wife-immigrant.html

Thanks for any clarifications on this matter

What exactly did you read on this link that freaked you out? I am only able to see a bunch of questions there, nothing of specific relevance to your case. Maybe I am missing something?

[Darnell 8,479]

basically, if there is no 2 year home residency rule tied in with her F-1 visa,

the two of you can file the adjustment of status case on monday.

Good Luck !

ps - study our guides here - AOS for her is different than AOS for a K-3 visa, is more paperwork, more fees.

[aayitrun 66]

nothing complicated about it. just follow the "both u and alien spouse in country" guide.

[Little_My 464]

You are in a fairly common situation. Many people (myself included) adjust status from F1 to permanent resident all the time, without any problems. There is no home residency requirement attached to F-1 visas, only J-1, so that is a non-relevant issue for you. I'm not quite sure what these waiting times are that you are referring to, but when the other spouse is a US citizen, the average time from filing the papers to getting the GC when filing AOS within the US is around 4-6 months. If she has not overstayed her previous non-immigrant visa by the time you file the papers, she can also fill out the I-131 for the AP travel document, which will allow her to travel internationally while her AOS is pending.

The guide you should be looking at is this one: http://www.visajourney.com/content/i130guide2

It's really a fairly straight forward process. Just file as soon as you have all the paperwork ready. She will get an unconditional 10 year greencard since you have been married for more than 2 years.

[grrrrreat 109]

You are in a fairly common situation. Many people (myself included) adjust status from F1 to permanent resident all the time, without any problems. There is no home residency requirement attached to F-1 visas, only J-1, so that is a non-relevant issue for you. I'm not quite sure what these waiting times are that you are referring to, but when the other spouse is a US citizen, the average time from filing the papers to getting the GC when filing AOS within the US is around 4-6 months. If she has not overstayed her previous non-immigrant visa by the time you file the papers, she can also fill out the I-131 for the AP travel document, which will allow her to travel internationally while her AOS is pending.

The guide you should be looking at is this one: http://www.visajourney.com/content/i130guide2

It's really a fairly straight forward process. Just file as soon as you have all the paperwork ready. She will get an unconditional 10 year greencard since you have been married for more than 2 years.

For "waiting times", I think OP may be referring to the 10 year ban for people who overstayed for more than a year. It doesn't sound like OP's wife has overstayed at all, and filing the adjustment application puts her lawful status on hold (as you point out). OP should feel confident about filing I-130/I-485/I-131/I-765 to adjust status and get an interim employment authorization document/advance parole.

[zeveljones 3]

Thanks so much for the replies! I've read through the step-by-step guide here and it was helpful!

We've already filled out almost all the forms and I hope to be sending this package out early this coming week.

I just have one questions regarding form i-864 (Affidavit of Support).

Item 25 in that form requests tax return information and the attachment of a photocopy of tax returns for either 2011 or last three years.

So here's the thing. I've been living overseas since I was 13 years old. I was married to my wife overseas and only moved with her to the US in the Fall of 2011. I have never in my life worked or earned any sort of income in the US until January of this year (2012).

Not having lived in the US throughout my adult life, I was never aware of the fact that I was basically supposed to file tax returns for all of those years, regardless where I resided or made my living. Now that I now this I intend to put al of that in order. Luckily I found out that the country I was living in has a tax treaty with the US, so it looks as though I don't owe and money and won't be penalized.

Regarding form i-864, am I correct in understanding that in my situation I am expected to fill out irs tax form 1040 for the past three years, photocopy it, send it to the required irs address, and attach the photocopies to my i-864 form?

I know this is kind of a tax question as much as it is an immigration questions, but I thought that since so many have probably been in similar situations, maybe someone might know how to go about this.

Thanks again!

[Harpa Timsah 13,258]

Yes, but since you have not filed, they may ask for tax transcripts. The photocopy you send USCIS will not match the IRS records for a while (it takes a while for the tax return to be processed) and they will want proof of filing. They won't take your word that you did with the photocopies in this case.

This directive about tax transcripts is somewhere, maybe in the form instructions itself.

I would send in the photocopy of the return, and expect a RFE for transcripts. Maybe you'll get lucky and the RFE won't come.

[zeveljones 3]

Okay, thanks Harpa for such a quick reply. I'll take your advice.

So I'll attach the photocopies of the filled out forms and if I get an RFE, I'll deal with it then

Thank you!