Adjusting from (expired) OPT to LPR

[mistamention2002 0]

Hi,

I am hoping that I can have some clarification to my situation. I entered the US legally in 2009 as a Associates Degree student, completed my studies and graduated in 2011. Went on the OPT program the same year. OPT had expired in 2012 and I have since been working, paying & filing my taxes. I had finalized my divorce from a previous marriage (being separated and out of touch for 2 years) and then shortly after in May 2013, I got married (legitimately) to a US citizen and now we are thinking of doing an adjustment of status to LPR. My spouse was told (in person) by an information employee at USCIS that it would make no sense applying for the adjustment because I am out of status & this would likely result in the application being rejected and me ordered to be deported/removed.

We really don't have the $3,000 (Rhode Island) lawyer fee, so we were wondering if our plan of filing it ourselves is in jeopardy.

Any advice (or explanation of the applicable immigration law) would be GREATLY appreciated.

Thanks!

[newacct 688]

That person is wrong. As an immediate relative of a U.S. citizen, you don't need to be in status to apply for AOS and having being out of status and unauthorized work are all forgiven.

It sounds pretty straightforward as long as you have proof of bona fide marriage. Maybe they will ask you about the divorce and remarriage, but I don't think it should be a problem.

You shouldn't need a lawyer. Just apply and follow the guide: http://www.visajourney.com/content/i130guide2

Edited June 28, 2013 by newacct

[KayDeeCee 4,896]

~ Moved from K-1 Process to AOS from Work, Student & Tourist Visas ~

[aaron2020 11,651]

The USCIS misinformation line strikes again.

You can safely adjust in the US. Your visa overstay will be ignored.

You will not be able to use AP, so do not leave the US without a green card. Even if you are granted AP, you are not eligible to use it as a visa overstay.

You should still apply for an EAD.

[Taylor4040 0]

Hi,

In response to your comment:

"You will not be able to use AP, so do not leave the US without a green card. Even if you are granted AP, you are not eligible to use it as a visa overstay."

I graduated last year and was on OPT. My OPT ended and expired on July 2013. I recently got married and now filing for Adjustment of status, along with EAD and AP. So in my case, even a AP is issued to me, can I leave the country to visit my family?

Thank you!

[newacct 688]

Hi,

In response to your comment:

"You will not be able to use AP, so do not leave the US without a green card. Even if you are granted AP, you are not eligible to use it as a visa overstay."

I graduated last year and was on OPT. My OPT ended and expired on July 2013. I recently got married and now filing for Adjustment of status, along with EAD and AP. So in my case, even a AP is issued to me, can I leave the country to visit my family?

Thank you!

The previous poster was talking about the ban from unlawful presence if you leave the U.S. (180 days of unlawful presence = 3 year ban; 1 year of unlawful presence = 10 year ban). However, unlawful presence only starts accruing after you exceed the date on your I-94. Since you were an F-1 student, your I-94 (almost certainly) says "D/S" (duration of status) instead. Therefore, you cannot accrue unlawful presence. And you don't need to worry about the ban if you leave and enter the U.S.