F1 visa while I130 pending

[rob1 0]

I read a similar thread on this forum and I understand that in order to get a student visa, I would have to show non-immigrant intent. However, my intent is very much to stay in the US. Let me elaborate a little.

I moved with my Mom to the US from Poland when I was 10 on a tourist visa, and so I grew up in the states illegally. I left after turning 19 because I couldn't afford to go to college and I didn't want to work off the books for the rest of my life. I returned to Poland where I now study general mathematics, but I'm in my final semester and I applied for a couple PhD programs in applied mathematics in the states. I got accepted by U of Rochester and Drexel with a full tuition waiver and a stipend of roughly $20,000/year (Teaching Assistant job). I'm really excited about this and I want to apply for a student visa but a couple of years ago, my Mom married an American citizen and filed an I130 for me. I've been looking at the visa bulletin board periodically since then and if the current trend continues, my priority date will become current in September of this year.

And now this is my dilemma. I do want to go back to the US permanently and I want to do so legally in order to continue my education. I would have no problem waiting for a green card through the I130 if it wasn't for the fact that school starts in September and I would have to undergo a training program for teaching assistants in August. As such, I'd like to apply for an F1 visa but I'm worried it might be a lost cause. I don't want to withdraw my I130 either because I'd like to settle in the states after my PhD program. Do you think it would be wise to explain all this to the consulate interviewer? I have immigrant intent but in a couple of months it wouldn't matter anyway.

Edited April 10, 2013 by rob1

[Tygrys 143]

You don't appear to be too concerned about consequences of your previous illegal stay in the U.S.

From what you wrote, you left after turning 19, which means that you were illegally present in the U.S. for more than a year after 18.

Illegal presence of 1 year or more = 10 year ban under INA section 212(a)(9)(B)(I)(II).

Edited April 10, 2013 by Tygrys

[Gosia & Tito 199]

I read a similar thread on this forum and I understand that in order to get a student visa, I would have to show non-immigrant intent. However, my intent is very much to stay in the US. Let me elaborate a little.

I moved with my Mom to the US from Poland when I was 10 on a tourist visa, and so I grew up in the states illegally. I left after turning 19 because I couldn't afford to go to college and I didn't want to work off the books for the rest of my life. I returned to Poland where I now study general mathematics, but I'm in my final semester and I applied for a couple PhD programs in applied mathematics in the states. I got accepted by U of Rochester and Drexel with a full tuition waiver and a stipend of roughly $20,000/year (Teaching Assistant job). I'm really excited about this and I want to apply for a student visa but a couple of years ago, my Mom married an American citizen and filed an I130 for me. I've been looking at the visa bulletin board periodically since then and if the current trend continues, my priority date will become current in September of this year.

And now this is my dilemma. I do want to go back to the US permanently and I want to do so legally in order to continue my education. I would have no problem waiting for a green card through the I130 if it wasn't for the fact that school starts in September and I would have to undergo a training program for teaching assistants in August. As such, I'd like to apply for an F1 visa but I'm worried it might be a lost cause. I don't want to withdraw my I130 either because I'd like to settle in the states after my PhD program. Do you think it would be wise to explain all this to the consulate interviewer? I have immigrant intent but in a couple of months it wouldn't matter anyway.

I'd say that first thing to do is to have your mother consult with an immigration attorney about what could possibly be done, if anything in relation to the ban the prior post notes.

As for the college, it is not uncommon to ask and get a postponement of when to start, possibly for 1 year. However, that might mean a different financial arrangement because of budget reasons (they have your contract monies in the current budget, that can change the next year)

If you prefer to go with the consulate exploration, they would surely ask at some point about a prior stay and make some decisions. I'd check with an attorney about what could be done before going to talk to anyone a tthe consulate.

[Tygrys 143]

You can try to get F-1, but once someone shows an intention to immigrate (pending immigrant petition) chance to get a non-immigrant visa is next to zero.

Whatever you do, your visa application (F-1 or F-2B) will be initially denied based on inadmissibility.

You will need to file 212(d)(3) waiver for non-immigrant visa or I-601 waiver for immigrant visa and wait for approval.

Previous poster's suggestion to consult with an immigration attorney is a good one.

Edited April 11, 2013 by Tygrys

[rob1 0]

Thank you very much for the responses. I might be in more trouble than I originally thought and I suppose I will have to seek legal counsel. Do you know whether a possible ban could prevent me from getting a green card through the I130? I foolishly assumed that since the I130 was approved, I just have to wait for the priority date to become current.

[Tygrys 143]

Thank you very much for the responses. I might be in more trouble than I originally thought and I suppose I will have to seek legal counsel. Do you know whether a possible ban could prevent me from getting a green card through the I130? I foolishly assumed that since the I130 was approved, I just have to wait for the priority date to become current.

Most likely your F-2B visa application will be denied during your interview in Warsaw.

After that you will have to file I-601 waiver application and wait for it to be approved before your visa can be issued.

I have no idea what are the chances for a successful waiver, but I would assume most people in your situation will get it.

Do some research on I-601 waivers. There is a lot of info on this and other immigration sites.

Good luck!

Edited April 11, 2013 by Tygrys

[rob1 0]

Ok, thanks again for the help Tygrys.