F1-OPT ending soon, going for marriage to stay in U.S.

[spasiba 1]

Hello all,

My partner is a Ukrainian citizen, currently residing in the U.S. legally through a F1-OPT visa.  Her visa expires August 11th of this year, however her EAD card allows her to work and live legally in the U.S. until August 28th.  We want to get married and have her apply for a green card (through Adjustment Of Status [AOS]) in order for her to stay and continue our relationship.  This is a recent decision and we want this process to be as smooth as possible without the help of a lawyer.  So that brings us here with some questions regarding the legal side of things.

We are hoping it is not too late to go through this process.  I hear there are lots of forms and documents to have prepared and mailed.

 

1. Is it necessary for USCIS to receive these forms before her visa expires or before her EAD card expires?  OR is she able to submit these forms during her 2-month grace period?

 

2. Does she have to get another kind of visa while she's waiting for her green card?  If yes, is it possible to do this in the U.S.?

 

3. If applying through AOS, do we have to fill out separate I-131 (permission to re-enter U.S.) or is this included?

 

4.  Do we need to go to city hall ASAP to go through the ceremony or do we have some time?

 

We are determined to make this marriage happen in time and appreciate any help from this community.

 

Thank you,

K and N

 

[Suss&Camm 2,213]

21 minutes ago, spasiba said:

Hello all,

My partner is a Ukrainian citizen, currently residing in the U.S. legally through a F1-OPT visa.  Her visa expires August 11th of this year, however her EAD card allows her to work and live legally in the U.S. until August 28th.  We want to get married and have her apply for a green card (through Adjustment Of Status [AOS]) in order for her to stay and continue our relationship.  This is a recent decision and we want this process to be as smooth as possible without the help of a lawyer.  So that brings us here with some questions regarding the legal side of things.

We are hoping it is not too late to go through this process.  I hear there are lots of forms and documents to have prepared and mailed.

 

1. Is it necessary for USCIS to receive these forms before her visa expires or before her EAD card expires?  OR is she able to submit these forms during her 2-month grace period?

When her visa expires she will start accruing unlawful presence. After more than 180 days of unlawful presence and if AOS is not completed, she will receive an automatic 3 year ban upon leaving the country (1 year unlawful presence - 10 year ban).

However, since you are marrying and applying for AOS any unlawful presence will be ignored (for spouse of USC) and once USCIS receives the application she will enter a period of lawful stay. She cannot work or travel during this period before EAD/AP is approved - application free with aos application.

21 minutes ago, spasiba said:

2. Does she have to get another kind of visa while she's waiting for her green card?  If yes, is it possible to do this in the U.S.?

No, she will be in lawful stay.

21 minutes ago, spasiba said:

3. If applying through AOS, do we have to fill out separate I-131 (permission to re-enter U.S.) or is this included?

You fill out separate i131 and I 765 but fees are waived with i485. It's issued as a combo EAD/AP card.

21 minutes ago, spasiba said:

4.  Do we need to go to city hall ASAP to go through the ceremony or do we have some time?

You can do it whenever you want. Just keep in mind the unlawful presence. In case you two change your minds and don't go through with it she will risk problems with future travels to the US.

21 minutes ago, spasiba said:

We are determined to make this marriage happen in time and appreciate any help from this community.

 

Thank you,

K and N

 

Good luck

[Suss&Camm 2,213]

Oh and you will also have to file i130 and i130a with the package. That's the petition.

Edited August 2, 2017 by Suss&Camm

[Ryan H 3,834]

Moved from IR-1/CR-1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas forum.

[Coco8 1,042]

2 hours ago, Suss&Camm said:

When her visa expires she will start accruing unlawful presence. After more than 180 days of unlawful presence and if AOS is not completed, she will receive an automatic 3 year ban upon leaving the country (1 year unlawful presence - 10 year ban).

This is not accurate.

 

When you have an F1 visa, what matters is not the expiration of the F1 stamp on the passport but the date on the i-20. 

 

In this case, the i-20 was finalized because she graduated and is on OPT. If she has not been without work for more than 90 days during OPT, she has 60 day grace period after the expiration of the EAD card. Otherwise, she would have to leave by the date of the EAD card.

 

Technically, because students are admitted D/S (duration of stay) to the US, she would never accrue time so there would be no ban (someone posted the law in which you can find this information in another thread). However, it would be a violation of the visa not to follow the rules. 

 

That said, I recommend that you marry before her EAD expires or, if she has grace period, before that ends, and submit AOS. The issue here is that if you decide not to marry+AOS, she will be in violation of her visa and she could get into trouble to get another visa. Even though she would not have a ban, it would be a visa violation. Plenty of people on VJ say they are going to marry/AOS and then they don't, and the foreigner ends up in a really big mess. Some marry and not AOS, and then the foreigner is also in a mess.

 

 

 

Edited August 2, 2017 by Coco8

[Suss&Camm 2,213]

32 minutes ago, Coco8 said:

This is not accurate.

 

When you have an F1 visa, what matters is not the expiration of the F1 stamp on the passport but the date on the i-20. 

 

In this case, the i-20 was finalized because she graduated and is on OPT. If she has not been without work for more than 90 days during OPT, she has 60 day grace period after the expiration of the EAD card. Otherwise, she would have to leave by the date of the EAD card.

 

Technically, because students are admitted D/S (duration of stay) to the US, she would never accrue time so there would be no ban (someone posted the law in which you can find this information in another thread). However, it would be a violation of the visa not to follow the rules. 

 

That said, I recommend that you marry before her EAD expires or, if she has grace period, before that ends, and submit AOS. The issue here is that if you decide not to marry+AOS, she will be in violation of her visa and she could get into trouble to get another visa. Even though she would not have a ban, it would be a visa violation. Plenty of people on VJ say they are going to marry/AOS and then they don't, and the foreigner ends up in a really big mess. Some marry and not AOS, and then the foreigner is also in a mess.

 

 

 

Thanks for correcting - Ok so admitted D/S will only accrue unlawful presence if a formal decision of overstay is made, but they would still be in violation of the visa - which carries the same consequences for future visa applications, if I understand correctly.

Apologies for any confusion.

[spasiba 1]

13 hours ago, Coco8 said:

This is not accurate.

 

When you have an F1 visa, what matters is not the expiration of the F1 stamp on the passport but the date on the i-20. 

 

In this case, the i-20 was finalized because she graduated and is on OPT. If she has not been without work for more than 90 days during OPT, she has 60 day grace period after the expiration of the EAD card. Otherwise, she would have to leave by the date of the EAD card.

 

Technically, because students are admitted D/S (duration of stay) to the US, she would never accrue time so there would be no ban (someone posted the law in which you can find this information in another thread). However, it would be a violation of the visa not to follow the rules. 

 

That said, I recommend that you marry before her EAD expires or, if she has grace period, before that ends, and submit AOS. The issue here is that if you decide not to marry+AOS, she will be in violation of her visa and she could get into trouble to get another visa. Even though she would not have a ban, it would be a visa violation. Plenty of people on VJ say they are going to marry/AOS and then they don't, and the foreigner ends up in a really big mess. Some marry and not AOS, and then the foreigner is also in a mess.

 

 

 

 

12 hours ago, Suss&Camm said:

Thanks for correcting - Ok so admitted D/S will only accrue unlawful presence if a formal decision of overstay is made, but they would still be in violation of the visa - which carries the same consequences for future visa applications, if I understand correctly.

Apologies for any confusion.

 

Thank you guys so so much, I really appreciate the answers

 

- K and N

[azblk 338]

On 8/1/2017 at 10:04 PM, Suss&Camm said:

Thanks for correcting - Ok so admitted D/S will only accrue unlawful presence if a formal decision of overstay is made, but they would still be in violation of the visa - which carries the same consequences for future visa applications, if I understand correctly.

Apologies for any confusion.

She is on OPT. It allows you 60 days to get your affairs in order and leave before you are out of status.

Edited August 5, 2017 by azblk

[Suss&Camm 2,213]

15 hours ago, azblk said:

She is on OPT. It allows you 60 days to get your affairs in order and leave before you are out of status.

Yes @Coco8 already explained

Unless a decision is made by uscis -which I read normally happens when you send your aos application. The only way they would accrue unlawful presence is therefore if an aos were to be rejected, forcing them to reapply. They would then accrue it until the next application is filed.

[spasiba 1]

16 hours ago, azblk said:

She is on OPT. It allows you 60 days to get your affairs in order and leave before you are out of status.

So does this mean she needs to leave the country after this 60-day period ends if the application is still pending?  We plan to submit the AOS applications to USCIS by August 19th.  Her visa expires the 11th and her EAD card expires the 28th.

[Suss&Camm 2,213]

12 minutes ago, spasiba said:

So does this mean she needs to leave the country after this 60-day period ends if the application is still pending?  We plan to submit the AOS applications to USCIS by August 19th.  Her visa expires the 11th and her EAD card expires the 28th.

With a pending aos application you are always in authorized stay. That's the same for everyone regardless of what visa you adjust from. 

Also, leaving the country at that point without a valid AP will result in an abandoned aos.

[azblk 338]

2 hours ago, spasiba said:

So does this mean she needs to leave the country after this 60-day period ends if the application is still pending?  We plan to submit the AOS applications to USCIS by August 19th.  Her visa expires the 11th and her EAD card expires the 28th.

No she does not need to leave and should not leave unless she has been granted advance parole. Everything pretty much stays the same, the only difference is she will not be able to work until she gets her new EAD after the current one expires.

[spasiba 1]

@Suss&Camm @Coco8
 

Do any of you know if I need a NY ID (i.e. driver's license) in order to get married in NYC and go through the interview process?  We both recently moved here and plan to continue living here.  I was born and raised in Virginia and was going to put my parents' address on the USCIS Forms but I was told that I should put a NY address in addition to obtaining a NY ID.  The lease at my current address is about to end and I am still searching for my next home in NYC.  I may actually end up moving in with my future spouse who has a more permanent address than mine.  

Thanks for all the help.

[Coco8 1,042]

33 minutes ago, spasiba said:

@Suss&Camm @Coco8
 

Do any of you know if I need a NY ID (i.e. driver's license) in order to get married in NYC and go through the interview process?  We both recently moved here and plan to continue living here.  I was born and raised in Virginia and was going to put my parents' address on the USCIS Forms but I was told that I should put a NY address in addition to obtaining a NY ID.  The lease at my current address is about to end and I am still searching for my next home in NYC.  I may actually end up moving in with my future spouse who has a more permanent address than mine.  

Thanks for all the help.

 

You will have to live with your US spouse if you file AOS anyway so use his address. This is not because of marriage but for AOS one of the evidence you have to submit of bona fide marriage is living together. Some people even have surprise visits by USCIS to see if they actually live together. 

 

I'm not from NY so I don't know. But I doubt you will need an US ID. Regardless, I always think it is a good idea to have an state ID (you can get one that is not for driving) because you can misplace your passport and that will be a big problem -- some consulates do not make passports and others take a long time. I lost my passport so I'm taking from experience.

 

Check here on what you need to get married in NY

http://www.cityclerk.nyc.gov/html/marriage/license.shtml

 

 

[sweetadams 138]

On 8/6/2017 at 5:31 PM, spasiba said:

@Suss&Camm @Coco8
 

Do any of you know if I need a NY ID (i.e. driver's license) in order to get married in NYC and go through the interview process?  We both recently moved here and plan to continue living here.  I was born and raised in Virginia and was going to put my parents' address on the USCIS Forms but I was told that I should put a NY address in addition to obtaining a NY ID.  The lease at my current address is about to end and I am still searching for my next home in NYC.  I may actually end up moving in with my future spouse who has a more permanent address than mine.  

Thanks for all the help.

If your spouse have a more permanent address, then I suggest you use that. Correspondence will be made with that address as well as serving as a home address for you. I don't live in NY but I believe if you still have a valid Virginia DL, you can use that pending when you can change it (You can change address online at the USCIS website). Due to the time issues relating to your spouse, I would suggest you get the application in first. If you put Virginia address as your home address, your field office will be in Virginia and you will be required to drive down to VA for interviews, biometrics and all.