Questions about F1 AOS, K1, and OPT

[US-Ecuador 0]

I am a US citizen and my fiancee is Ecuadorian and we are in a fairly complex situation. We have been together for 4 and a half year now and we know we want to spend the rest of our lives together and are planning to get married. Her parents approve of our marriage but say she has to graduate college first, which she will do with a double major in Accounting and Business Administration on May 23, 2105. She has a plane to return to Ecuador on May 31, 2015, after her F1 visa expires on May 25, 2015 unless she gets an internship/job with Optional practical training that would allow her to work and stay here longer. I was born in the US and am a citizen and I will also be graduating with my PhD in October-December 2015. We are both applying to jobs in the US, but I would like some advice on the best way for her to start working as soon as possible. Now here are some of my questions and scenarios I have in my mind and I would like some advice as to which route would be best to follow:

1. She can ideally get a job or internship with her Optional Practical Training which can last up to 12 months that would allow her to work in the US legally after completing a Bachelor's Degree program. However, it seems that many companies ask questions in their applications that seem like she will be ruled out just due to this unique status. We are submitting the OPT application this week to USCIS, but it says it takes 2-3 months for processing; if we do not receive these documents before her visa expires (May 25) would it be better for her to stay here to keep looking for work or go back to Ecuador on her scheduled flight? Would she be penalized for overstaying her visa or would she be alright since she would be continuing her F1status using OPT? We read that she has 90 unemployment days to keep looking after issuance of OPT but also that if she leaves and tries to come back without a job offer letter that she might not be granted her visa extension. Is it better to try to get her visa extended now (before she has the OPT EAD issued, if this is even possible), to overstay her visa waiting for the OPT and hopefully find a job, or to return to Ecuador on her scheduled flight whether or not her OPT is approved by then?

2. I read about adjustment of status visas and K1 visas, understand the main differences and know both cost $2,000 and take about 6 months. If we decide to go this route, should she still apply for OPT? Since her parents want to wait until after she graduates to allow us to marry, we would need to get married after she graduates on May 23 and before she leaves on May 31, which is a tiny window of time. If we don't get married before she goes back and her OPT is denied, could I go to Ecuador, marry her and we come back together? If we get married within this time window and apply for AOS, would it be better for her to overstay her visa or return to Ecuador? Could she be penalized for overstaying if we are legally married and have the paperwork mailed before her F1 visa expires? If it's better for her to return, then should we use the K1 visa instead? To maintain green card validity, would she be required to remain in the US for a specified amount of time each year (i.e., if she decides to work in another country for a year and then come back, would she lose her green card and have to pay the $2,000 again)?

We would like to stay together throughout the rest of 2015 and ideally have her working in the US and us living together. No matter what I know I want to be with her forever and we are worried that we might have to separate after her graduation if her OPT falls through. Any advice you can give me would be greatly appreciated.

Thanks you very much for reading my post and for any answers you may give!

[Pitaya 2,577]

~Moved from K1 Process to What Visa Do I Need Forum~

~Inquiry about family visas~

[aaron2020 11,651]

I am a US citizen and my fiancee is Ecuadorian and we are in a fairly complex situation. We have been together for 4 and a half year now and we know we want to spend the rest of our lives together and are planning to get married. Her parents approve of our marriage but say she has to graduate college first, which she will do with a double major in Accounting and Business Administration on May 23, 2105. She has a plane to return to Ecuador on May 31, 2015, after her F1 visa expires on May 25, 2015 unless she gets an internship/job with Optional practical training that would allow her to work and stay here longer. I was born in the US and am a citizen and I will also be graduating with my PhD in October-December 2015. We are both applying to jobs in the US, but I would like some advice on the best way for her to start working as soon as possible. Now here are some of my questions and scenarios I have in my mind and I would like some advice as to which route would be best to follow:

1. She can ideally get a job or internship with her Optional Practical Training which can last up to 12 months that would allow her to work in the US legally after completing a Bachelor's Degree program. However, it seems that many companies ask questions in their applications that seem like she will be ruled out just due to this unique status. We are submitting the OPT application this week to USCIS, but it says it takes 2-3 months for processing; if we do not receive these documents before her visa expires (May 25) would it be better for her to stay here to keep looking for work or go back to Ecuador on her scheduled flight? Would she be penalized for overstaying her visa or would she be alright since she would be continuing her F1status using OPT? We read that she has 90 unemployment days to keep looking after issuance of OPT but also that if she leaves and tries to come back without a job offer letter that she might not be granted her visa extension. Is it better to try to get her visa extended now (before she has the OPT EAD issued, if this is even possible), to overstay her visa waiting for the OPT and hopefully find a job, or to return to Ecuador on her scheduled flight whether or not her OPT is approved by then?

2. I read about adjustment of status visas and K1 visas, understand the main differences and know both cost $2,000 and take about 6 months. If we decide to go this route, should she still apply for OPT? Since her parents want to wait until after she graduates to allow us to marry, we would need to get married after she graduates on May 23 and before she leaves on May 31, which is a tiny window of time. If we don't get married before she goes back and her OPT is denied, could I go to Ecuador, marry her and we come back together? If we get married within this time window and apply for AOS, would it be better for her to overstay her visa or return to Ecuador? Could she be penalized for overstaying if we are legally married and have the paperwork mailed before her F1 visa expires? If it's better for her to return, then should we use the K1 visa instead? To maintain green card validity, would she be required to remain in the US for a specified amount of time each year (i.e., if she decides to work in another country for a year and then come back, would she lose her green card and have to pay the $2,000 again)?

We would like to stay together throughout the rest of 2015 and ideally have her working in the US and us living together. How about 2 out of 3? You can stay together throughout the rest of 2015 and live together in the US. It will take 90 days to get her work authorization. No matter what I know I want to be with her forever and we are worried that we might have to separate after her graduation if her OPT falls through. Any advice you can give me would be greatly appreciated.

Thanks you very much for reading my post and for any answers you may give!

Hi,

This is not a fairly complex situation. You only think it is.

Here is what I would do if I were you guys. This is the best option to stay together and is the least expensive overall.

1. Get a civil marriage at city hall after she graduates.

2. File for an adjustment of status so she can get a green card. At the same time, file for EAD and AP.

3. If she wants to leave the US after marrying and filing for AOS, DO NOT LET HER LEAVE WITHOUT AP. It will take about 90 days to get. If she leaves without AP, she will be stuck outside the US for 6-12 months. DO NOT LEAVE ON MAY 31, 2015. After getting AP, she can freely travel abroad without abandoning the AOS.

4. The EAD will take 90 days. Once she has it, she can take any job she wants.

5. She gets her green card in about 6 months after filing.

Best of luck.

Edited April 1, 2015 by aaron2020

[Boiler 45,531]

Hi,

This is not a fairly complex situation. You only think it is.

Here is what I would do if I were you guys. This is the best option to stay together and is the least expensive overall.

1. Get a civil marriage at city hall after she graduates.

2. File for an adjustment of status so she can get a green card. At the same time, file for EAD and AP.

3. If she wants to leave the US after marrying and filing for AOS, DO NOT LET HER LEAVE WITHOUT AP. It will take about 90 days to get. If she leaves without AP, she will be stuck outside the US for 6-12 months. DO NOT LEAVE ON MAY 31, 2015. After getting AP, she can freely travel abroad without abandoning the AOS.

4. The EAD will take 90 days. Once she has it, she can take any job she wants.

5. She gets her green card in about 6 months after filing.

Best of luck.

We agree.

Not sure how common OPT is in her field.

[US-Ecuador 0]

Thank you for the advice. If we do what you said, do we need to get married and send the AOS paperwork in the mail before her visa expires on May 25? Could she be penalized for overstaying her visa since the AOS won't be received/documented? What does AP stand for?

To maintain green card validity, would she be required to remain in the US for a specified amount of time each year (i.e., if she decides to work in another country for a year and then come back, would she lose her green card and have to pay the $2,000 again)?

[ChicagoSarah 127]

Overstay will be forgiven for a USC spouse. So get married and file the AOS with EAD/AP forms (Employment Authorization Document/Advance Parole) as son as you can. As the other poster said, she CANNOT leave the country until she has the EAD/AP card in hand...otherwise you'll have to start completely over.

Others know a bit more about maintaining green card status, but I know that the initial rule is that she'd have to spend more time in the US than outside of it to maintain LPR status. If she needs to be gone for an extended period, she can apply for a re-entry permit (i think this allows up to a year..someone else will know more).

[aaron2020 11,651]

Thank you for the advice. If we do what you said, do we need to get married and send the AOS paperwork in the mail before her visa expires on May 25? Could she be penalized for overstaying her visa since the AOS won't be received/documented? What does AP stand for?

To maintain green card validity, would she be required to remain in the US for a specified amount of time each year (i.e., if she decides to work in another country for a year and then come back, would she lose her green card and have to pay the $2,000 again)?

Hi,

Here authorized time is not determined by her visa expiration. The I-94 determines her authorized time here. Furthermore, there is a 30 days of authorized start after graduation. In addition, overstays are forgiven for a spouse of a USC.

The AOS authorizes her to stay. Get it done before her 30 days are up.

AP = Advance Parole

You are worrying about nothing. Get marry after graduation and file ASAP for AOS and EAD/AP. The letter you get when the petition is filed (aka NOA1) is evidence she is here legally.

Review the Guides and forms. You have 2 months to gather the required documents.

As an LPR, she can get a Re-Entry Permit which allows her to be outside the U.S. For up to 2 years. She will still need to maintain her ties to the U.S. Google "maintain legal permanent residency."

Edited April 1, 2015 by aaron2020

[US-Ecuador 0]

Thank you all for the responses, they have been very helpful.

I read about maintaining residence status, specifically about using re-entry permits if you are gone for more than a year. I read about keeping US addresses, bank accounts, family communication, etc. and I know we would do these things. I am asking about this because we are both applying to jobs in Europe and US and it is possible that we would take temporary positions in Europe if both of us receive offers. I would become a postdoc and my position would only last for 2-4 years and ideally she could find a position in her field (accounting/finance/business) in the same city for the same time. If we were to work in Europe for up to 4 years, would she then lose her green card status even if we maintain marriage and come back to the US (where my entire family lives) once per year to get new reentry permits? Can you get reentry permits abroad? If she would lose the green card, would she be able to get a new one as long as we are married and if so would we need to repeat this entire process?

[aaron2020 11,651]

Thank you all for the responses, they have been very helpful.

I read about maintaining residence status, specifically about using re-entry permits if you are gone for more than a year. I read about keeping US addresses, bank accounts, family communication, etc. and I know we would do these things. I am asking about this because we are both applying to jobs in Europe and US and it is possible that we would take temporary positions in Europe if both of us receive offers. I would become a postdoc and my position would only last for 2-4 years and ideally she could find a position in her field (accounting/finance/business) in the same city for the same time. If we were to work in Europe for up to 4 years, would she then lose her green card status even if we maintain marriage and come back to the US (where my entire family lives) once per year to get new reentry permits? Can you get reentry permits abroad? If she would lose the green card, would she be able to get a new one as long as we are married and if so would we need to repeat this entire process?

4 years in Europe is not temporary. She will lose her green card. You will have to start over.

[ChicagoSarah 127]

If she loses/abandons her green card, you'll have to apply for a CR1/IR1 visa whenever you choose to move back. Unless you live in a country with DCF (direct consular filing), the spousal visas are currently averaging about a year (but can take even longer).

[US-Ecuador 0]

OK, so then it seems it would be best to decide if we are going to work in either the US or Europe immediately after her graduation in May. This is very hard to do when neither of us have any offers yet and it is more complicated because my graduation isn't until December and I most likely won't know where I have any offers by the end of May.

I would definitely not want to go through the AOS process twice and pay $4000. So would it be correct to assume that if we decide to work in Europe for 2-4 years, we can get married here before leaving but not file for the green card? And if so, should she apply for OPT now and overstay her F1 visa to continue looking for employment for 90 days without penalty? Then, work in Europe together, file for the green card while in Europe (I checked and many countries we are considering have DCF) and continue working there until we get it approved and then move back here?

In the other case, if we get jobs here in the US, then we would get married and apply for the AOS like you suggested in the first reply.

[ChicagoSarah 127]

You can get married here or there (wherever you're allowed to do so). I wouldn't advocate her overstaying, though. Check her I-94 and see what date it has on it. If she overstays, you may have to then file a waiver when you file the spousal visa to move back. People seem to be pretty successful with these waivers, but just more hassle and more time. And an overstay could make her getting any kind of tourist visa to come back and visit nearly impossible.

A lot could happen in the next 2 months with jobs...but you probably need to really decide what country you're both going to pursue pretty soon.

Edited April 1, 2015 by ChicagoSarah

[aaron2020 11,651]

You can get married here or there (wherever you're allowed to do so). I wouldn't advocate her overstaying, though. Check her I-94 and see what date it has on it. If she overstays, you may have to then file a waiver when you file the spousal visa to move back. People seem to be pretty successful with these waivers, but just more hassle and more time. And an overstay could make her getting any kind of tourist visa to come back and visit nearly impossible.

A lot could happen in the next 2 months with jobs...but you probably need to really decide what country you're both going to pursue pretty soon.

Slow down.

An overstay does not mean a ban that requires a waiver. A person has to overstay more than 180 days and leave before a waiver is required. Less than 180 days does not require a waiver.

And waivers are not easy to get. There has to be a hardship to the USC spouse. More than missing her.

Edited April 1, 2015 by aaron2020

[ChicagoSarah 127]

Slow down.

An overstay does not mean a ban that requires a waiver. A person has to overstay more than 180 days and leave before a waiver is required.

And waivers are not easy to get. There has to be a hardship to the USC spouse. More than missing her.

Best not to overstay at all then...better safe than sorry! USCIS could always change their rules, too...for better or worse.

[US-Ecuador 0]

She told me that she talked to the international advisor at her college today and they told her that it would not be considered an overstay on her F1 visa if she applies for OPT since under OPT she will still be considered in F1 status even if her visa expires. Can anyone here verify this?

If this is true, then our plan would be for her to apply for OPT now and try to find a summer internship or something to work until we find where else I can get a job. Then if we decide to stay in the US we will get married and apply for AOS. If we decide to go to Europe then we will just get married and go.