US Student Engaged to Ugandan on F1 OPT: Questions about Adjustment of Status.

[bergman 0]

Hi I am a Senior in College and about to graduate. I am a US citizen and I am engaged to a Ugandan who went to an American University on a student Visa and is currently on his one year of OPT. His OPT expires August 5th and he can stay in the country until October 5th. I leave for Study Abroad on June 20th and return September 1st. When we marry and mail in the I130 will that allow him to stay in the US while the Visa process is occurring or will he have to leave the country on October 5th when his F1 expires? Is it in our best interest to marry as soon as possible as in the 1st week of June or does it hurt his chances to be able to stay in the US if we wait until the first week of September to get married knowing that according to his F1 Visa he needs to leave the country on October 5th.

[Inky 1,111]

As the OP is not applying for a spousal visa the question has been moved from spousal visa forums to adjustment of status from work student tourist forums as they are asking about adjusting status from student visa.

[FelixTX 2]

It basically doesnt matter if you marry now or in September...

As soon as USCIS receives your package, your Spouse is legal in the United States as long as the AOS process is pending... So dont worry about it.

That means, if they receive your AOS package on the 5th of october for example, he is no longer under his F1 Visa/OPT, then he has a legal status under the pending AOS until he gets his greencard. He just shouldnt leave the country before applying for the AOS or during the AOS process, because the USCIS will see the AOS as abandoned, if he leaves during it without an AP (I-131 form).

Edited May 28, 2013 by FelixTX

[bergman 0]

Thank you for your response. Did you have an F1 as well? So even though August 5th is the day his work authorization is over and October 5th is the day he would need to leave the country if USCIS receives the AOS package before October 5th he can legally be in the country? And he can also apply for work authorization at the same time he applies for AOS?

[newacct 688]

That means, if they receive your AOS package on the 5th of october for example, he is no longer under his F1 Visa/OPT, then he has a legal status under the pending AOS until he gets his greencard. He just shouldnt leave the country before applying for the AOS or during the AOS process, because the USCIS will see the AOS as abandoned, if he leaves during it without an AP (I-131 form).

Not true. Pending AOS does not remove his existing status. He is still in F1 status, and can still work under OPT as long as he doesn't violate its conditions.

Edited May 28, 2013 by newacct

[FelixTX 2]

Thank you for your response. Did you have an F1 as well? So even though August 5th is the day his work authorization is over and October 5th is the day he would need to leave the country if USCIS receives the AOS package before October 5th he can legally be in the country? And he can also apply for work authorization at the same time he applies for AOS?

I still have my F1 Visa, and I am not married yet. I am just reading along in some boards ;-)

He has to also apply for the EAD, concurrently filed with the package it doesnt cost anything additional, but it will take 60 to 90 days until he will receive the EAD.

And yes, the status of someone under the AOS process will be legal whenever USCIS receives your package

[FelixTX 2]

Not true. Pending AOS does not remove his existing status. He is still in F1 status, and can still work under OPT as long as he doesn't violate its conditions.

That is not what I meant... I'm sorry If It looked like I meant it like that. I meant, that when his F1 Status is gone (Like I said on October 5th) he will still be legal in this country under the AOS process... I didnt mean to make it sound like his OPT status will be gone... Since her question was, if he would have to leave the country on October 5th whether the AOS was filed earlier or later, which is not the case, since he will receive a new status after he is out of status with his F1 visa.

Edited May 28, 2013 by FelixTX

[newacct 688]

Thank you for your response. Did you have an F1 as well? So even though August 5th is the day his work authorization is over and October 5th is the day he would need to leave the country if USCIS receives the AOS package before October 5th he can legally be in the country? And he can also apply for work authorization at the same time he applies for AOS?

Even if he overstays and applies for AOS in December, or even years later (assuming he doesn't get deported in the meantime), it would not be a problem as the spouse of a citizen. Once USCIS receives the AOS application, he has legal status.

Edited May 29, 2013 by newacct