Post-OPT Marriage, AoS + Advance Parole Timing

[auturbine 10]

Hi all,

Firstly I am very thankful for this forum's existence - it has been an enormous help to find it & read some clear and helpful posts on the various intricacies of the AoS process. Anyway, here is my situation - I have seen variations on this being asked on the forums but I wanted to seek out some specific advice due to my circumstances.

I have been in F-1 status since 2008, completed the second of my two degrees in May 2015 and was approved for post-completion OPT on July 8th, 2015. I have been working since then, however my OPT is scheduled to expire on July 7th, 2016 (a few weeks from now). I had hoped to be able to secure long term employment & sponsorship through work during my year of OPT, but this option no longer seems to be on the table.

My girlfriend is a USC, we have lived together since 2012 and entered a domestic partnership in November 2015. We have begun to make plans for a small civil marriage ceremony in the very near future, with the intent of doing the AoS process and getting a green card. Ideally, we would have this all filed and sent before July 7th, although from previous threads it doesn't seem to make much of a difference if the application takes place during the 60 day grace period or before it (or even after the 60 day grace period - with the overstay being forgiven once the AoS process has begun for a spouse of a USC).

The complication currently is that we have plans (together) to travel to the UK in mid-August. My grandmother is ill and was recently given a terminal diagnosis - I have not been able to travel over there yet because of our work schedules and because it has all happened fairly suddenly. Booking for mid-August was the only way we could ensure getting over there to both be with her.

My concern, based on every post I've read here, is that this trip would (from today's date) be 8 weeks from now. Even if we had a civil ceremony this week & put in the paperwork as soon as possible, there's no chance that I will have received the Advance Parole to be able to travel by that point.

• I know there are provisions for receiving an Emergency Advance Parole: does this strike you as a case where I would be able to make use of that?
• Otherwise, what do you think the best course of action would be? As this trip will be during my 60 day grace period, once I leave I will not be able to return on my F-1 OPT & so will I no longer be able to apply for an AoS (after returning in August) with my partner, even though we'll be married by this point?

Any advice would be really helpful. In an ideal world we would have put in the paperwork earlier (and even gotten married sooner), but in an ideal world I wouldn't be worrying about the situation with my grandmother either.

Thanks for the help in advance!

[Harpa Timsah 13,258]

You could file AOS and try to get emergency AP and then prepare for the idea that you cannot go. Or you could leave and pursue a spousal visa. You'd be in the UK a year.

Generally imminent death is grounds for expedite/emergency but I am not sure if a grandmother is a close enough relative. You have to commit to find out, though. I hope it works for you.

[auturbine 10]

Thanks for the reply.

Another thought that crossed my mind, which would eliminate needing to worry about receiving the EAP before the trip in August: if we got married in the next few weeks (currently the plan, regardless), and then went to visit my grandmother in August without having filed for AOS in advance. In this scenario, I would be leaving during my 60 day grace period at the conclusion of my F-1 OPT (the grace period ends September 5th 2016) and would therefore essentially be forfeiting my continued F-1 status.

Would I then be able to return from that trip under the normal VWP/ESTA procedure? The trip to be with my grandmother is scheduled to be 8 days in total. I know that intent is always the question, and I've seen conflicting advice on this on the forum, but am I right in thinking that since I did not overstay my F-1 visa, there would be nothing stopping me returning soon after under the VWP?

Hope that makes sense, just trying to get a handle on all the scenarios.

[TakumiKobyashi 5]

Thanks for the reply.

Another thought that crossed my mind, which would eliminate needing to worry about receiving the EAP before the trip in August: if we got married in the next few weeks (currently the plan, regardless), and then went to visit my grandmother in August without having filed for AOS in advance. In this scenario, I would be leaving during my 60 day grace period at the conclusion of my F-1 OPT (the grace period ends September 5th 2016) and would therefore essentially be forfeiting my continued F-1 status.

Would I then be able to return from that trip under the normal VWP/ESTA procedure? The trip to be with my grandmother is scheduled to be 8 days in total. I know that intent is always the question, and I've seen conflicting advice on this on the forum, but am I right in thinking that since I did not overstay my F-1 visa, there would be nothing stopping me returning soon after under the VWP?

Hope that makes sense, just trying to get a handle on all the scenarios.

No, that would be considered immigration fraud, and there is a good chance you'll be turned away at the border when they find out you're married to a US Citizen (especially if they find out that you're planning to AOS).

[auturbine 10]

That's what I was worried about. Thanks for clarification. So essentially unless we got married ASAP & filed the AOS immediately (then applied for the EAP to travel in August), it would be a problem for me to return on VWP once we have married?

My immediate priority is getting back to be with my grandmother in August, so that will guide my thinking. But of course, I do not want to then be in a scenario where I am unable to travel back to the US soon after. I have no concerns about proving bonafides (have lived together since 2012, shared insurance & lease, domestic partnership etc.), just want to know if this trip in August is going to present more problems.

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post edited per op request

Edited June 21, 2016 by charles!

[aaron2020 11,651]

That's what I was worried about. Thanks for clarification. So essentially unless we got married ASAP & filed the AOS immediately (then applied for the EAP to travel in August), it would be a problem for me to return on VWP once we have married? You cannot enter the US on the VWP with the intent to immigrate. Better to maintain flexibility and potentially hold off on the marriage/AOS until further down the line (since the line on the forum seems to be that so long as intent has not been questioned, adjusting from a trip on VWP is legitimate). You got this wrong. You having this discussion shows your current intent to immigrate. Not marrying/AOS is not the relevant inquiry. The correct inquiry is on your intent when you enter. You would not be entering to continue your F1 status. You would be entering to immigrate. Get this out of your head that's it's okay since you currently do intend to immigrate if the US lets you back in in August.

My immediate priority is getting back to be with my grandmother in August, so that will guide my thinking. But of course, I do not want to then be in a scenario where I am unable to travel back to the US soon after. I have no concerns about proving bonafides (have lived together since 2012, shared insurance & lease, domestic partnership etc.), just want to know if this trip in August is going to present more problems.

You have only one choice that meets your needs - get marry, file for AOS, get Emergency AP, travel to see grandma, and have a legal way to return to the US.

If you leave for the US without AP, then you will wait one year for an immigration visa.

There is no legal way for you to re-enter the US after visiting abroad without AP or an immigration visa. It's immigration fraud for you to enter on your F-1 visa with the intent to immigrate. It's a no go.

You're a grown up. You need to make your choice. At this point, you don't have an option to go see grandma and have legal entry into the US. Get AP if you want to make the trip. You can stay and not visit grandma. You can visit grandma without AP and knowing you will need an immigration visa to get back.

Best of luck.

Edited June 21, 2016 by aaron2020