some questions about timeline for renewing F1 visa and/or filing for AoS based on marriage

[anbigu 0]

hi,

 

I am starting to look into the possibility of applying for permanent residency through AoS from my F1; at the same time, I am looking into extending my F1/I20. My USC partner and I are not married yet but have lived together for two years and are considering marrying sometime in the next year. I arrived in the USA in 2015 on an F1 visa for a 5 year grad school program. The F1 visa in my passport has a May 2020 date, and so does my current I20. My graduate school program will take me at least 6 years to complete (this is true for most students in our program), and it will be fairly straightforward to get my school to print out a new I20 with a May 2021 date (there is funding in place for my 6th year of school). I usually travel to my home country at least once a year, and I'm trying to figure out when to apply for various things and in what order - the main thing that I'm confused about is whether or not I'll be able to exit and re-enter the USA in order to visit my home country once we've filed for AoS. I'm also worried about extending my F1 (not the I20, that's easy) given that I have plans to marry a USC. 

 

Our current plan is for me to extend my I20 this coming fall (fall 2019) so that it'll be legal for me to be in the USA on my student status through May 2021; note that on this plan, I'm not wanting to actually get a new F1 visa in my passport with a May 2021 date. Then, we're planning to visit my home country together in January 2020 (I'd re-enter on my current F1), and to get married in the USA either right before or right after that, and then file AoS paperwork early 2020. Then, my plan is to just stay in the USA without leaving and trying to re-enter until I have a green card. 

 

All of that being said, there are a couple of major downsides to this plan:

- I'm a scientist and it may be beneficial for my career to present research at international conferences, so not being able to do any conferences outside of the USA until I have a green card isn't ideal. 

- There's some chance that my grandma with Alzheimer's (she's over 90 years old) might pass away after I've filed my AoS paperwork but before I would have received my green card. Would I then need to choose between missing her funeral while I stay in the USA or going to her funeral and risk not being let back into the USA? 

 

Some other options - this is where I have questions! 

1.  Should I apply for a new F1 visa stamp (that would be valid thru 2021, like the new I20 I'd have at that point) at my home country's consulate during our January 2020 trip? I'm worried about doing this - back when I originally applied for my F1 in 2015 I had no plans to stay in the USA, but right now I have demonstrable ties here (e.g. a shared lease with a long term partner who I'm considering marrying). But I'm also thinking questions like that might not come up (since I am also actually extending my grad school program with a year) and so maybe it's dumb not to do it, since the F1 visa would allow me to re-enter the country easier between May 2020 and May 2021 should I need to leave and re-enter for work or family reasons?  

2. Right now I'm not planning to apply for a travel permit with my AoS application - I've heard from other USA-international student couples at my university that their lawyers recommended against traveling in and out of the country until you have the green card in hand. Should I be applying for that anyway and then only use it in case of emergency (e.g. grandma passes away)? Or should I apply for it anyway and then plan to travel as normal (1-2  short trips per year for work/family purposes)? 

3. Right now, I'm also not planning to apply for a work permit with my AoS application. As a graduate student I already work, have a SSN and pay taxes all within what is legally allowed with my F1 visa (so basically I work for the university for 20 hours per week as a teaching or research assistant - added benefit is that this means the university covers my tuition), and I don't plan on changing that until I graduate in May 2021. Again, I've heard it said by other USA-international student couples that it's a risk to get a work permit associated with the AoS and then (with that work permit) work more than is normally allowed on an F1. Cause then if the green card gets denied, you can't easily fall back on your F1 since you'll have stepped outside of what's allowed on that.

4. We are not currently planning on getting a lawyer - the relationship is bona fide, I am here legally, neither me nor my USC partner has broken any laws, my partner earns more than enough to meet I864 requirements on his own, so basically as far as we're aware there are no red flags at all that might make our application difficult. Couples we've spoken to who applied pre-2017 under the previous administration think we should be totally fine without a lawyer, but couples we've spoken to who applied under the current administration are saying it's more difficult nowadays and recommend for sure getting a lawyer, even if our case is seemingly straightforward. I have enough money saved up to pay for a lawyer if need be, but I'd rather not spend the money if I don't need to. Is that dumb? 

5. Are there any major things I'm overlooking? 

 

In case it's relevant, after graduating with my PhD I'm planning to apply for academic jobs in the USA, probably both postdocs and tenure track professor jobs, though there's also a chance that I'll want to apply for industry jobs. Our reasoning is that a green card will provide me with more flexibility in applying for jobs. If I apply for jobs on my current status, I'd be looking at either F1 OPT (+ STEM extension) and/or J1 (which can have a requirement to then stay in your home country for 2 years afterwards, which I don't want given that my partner lives & works here in the USA) for postdocs, and H1B on the off chance that I'll land a tenure track job. However, what I really want to avoid at all costs is not being able to work the job I want because of visa procedures (e.g. because I'm still waiting for a greencard). 

 

Thanks in advance for any advice you might want to share! I'm a risk-averse academic and tend to overthink things a bit, so this post became pretty long... thanks for bearing with me! 

 

[geowrian 22,338]

23 minutes ago, anbigu said:

Then, we're planning to visit my home country together in January 2020 (I'd re-enter on my current F1), and to get married in the USA either right before or right after that, and then file AoS paperwork early 2020. Then, my plan is to just stay in the USA without leaving and trying to re-enter until I have a green card. 

This piece would be fraud. You cannot enter on an F-1 visa with intent to AOS. You can AOS while already in the US, but you cannot leave and re-enter to AOS.

 

23 minutes ago, anbigu said:

Would I then need to choose between missing her funeral while I stay in the USA or going to her funeral and risk not being let back into the USA?  

You can apply for AP when you file for AOS. ETA: ~4-7 months. You can request an expedite or do emergency AP if an urgent need arises. Whether or not that would be approved is a discretionary decision.

 

23 minutes ago, anbigu said:

1.  Should I apply for a new F1 visa stamp (that would be valid thru 2021, like the new I20 I'd have at that point) at my home country's consulate during our January 2020 trip? I'm worried about doing this - back when I originally applied for my F1 in 2015 I had no plans to stay in the USA, but right now I have demonstrable ties here (e.g. a shared lease with a long term partner who I'm considering marrying). But I'm also thinking questions like that might not come up (since I am also actually extending my grad school program with a year) and so maybe it's dumb not to do it, since the F1 visa would allow me to re-enter the country easier between May 2020 and May 2021 should I need to leave and re-enter for work or family reasons?   

Applying for a new visa / renewal always has the risk of denial. The risk of denial with a USC fiance or spouse is higher as that is a tie to the US, not a tie to return home.

As noted above, you can use an F-1 visa for its intended purpose, but not as a means to immigrate.

 

23 minutes ago, anbigu said:

2. Right now I'm not planning to apply for a travel permit with my AoS application - I've heard from other USA-international student couples at my university that their lawyers recommended against traveling in and out of the country until you have the green card in hand. Should I be applying for that anyway and then only use it in case of emergency (e.g. grandma passes away)? Or should I apply for it anyway and then plan to travel as normal (1-2  short trips per year for work/family purposes)? 

I would highly suggest applying for AP. If you have it, then you can use it. No entry is guaranteed, but denial of entry with a valid AP document is exeedingly rare. You cannot use the F-1 visa to re-enter after filing for AOS - you have to use AP or else AOS is automatically abandoned.

 

23 minutes ago, anbigu said:

3. Right now, I'm also not planning to apply for a work permit with my AoS application. As a graduate student I already work, have a SSN and pay taxes all within what is legally allowed with my F1 visa (so basically I work for the university for 20 hours per week as a teaching or research assistant - added benefit is that this means the university covers my tuition), and I don't plan on changing that until I graduate in May 2021. Again, I've heard it said by other USA-international student couples that it's a risk to get a work permit associated with the AoS and then (with that work permit) work more than is normally allowed on an F1. Cause then if the green card gets denied, you can't easily fall back on your F1 since you'll have stepped outside of what's allowed on that.

What you've heard is a considerable misunderstanding at best. There is no good reason not to apply for an EAD. Much like AP, it's better to have it than not have it. Leave your options open.

Actually using an EAD (or AP) does abandon F-1 status. But the authorized stay from the pending AOS application remains. The only potential issue would be if AOS was denied. But if that were to happen (for a reason that you can't just refile to fix), you have bigger issues to address already.

 

23 minutes ago, anbigu said:

4. We are not currently planning on getting a lawyer - the relationship is bona fide, I am here legally, neither me nor my USC partner has broken any laws, my partner earns more than enough to meet I864 requirements on his own, so basically as far as we're aware there are no red flags at all that might make our application difficult. Couples we've spoken to who applied pre-2017 under the previous administration think we should be totally fine without a lawyer, but couples we've spoken to who applied under the current administration are saying it's more difficult nowadays and recommend for sure getting a lawyer, even if our case is seemingly straightforward. I have enough money saved up to pay for a lawyer if need be, but I'd rather not spend the money if I don't need to. Is that dumb? 

That's a personal decision, but nothing you noted implies a complicated case. Most people on this website did it themselves.

 

23 minutes ago, anbigu said:

5. Are there any major things I'm overlooking? 

Having a small court wedding sooner then applying for AOS may be better in your case, since - as noted - you can't leave the US and return with intent to stay / file for AOS. Starting the process sooner means you'll get an EAD, AP, and eventually the green card sooner.

Edited April 18, 2019 by geowrian

[anbigu 0]

thank you so much for the detailed reply, I really appreciate it! 

34 minutes ago, geowrian said:

This piece would be fraud. You cannot enter on an F-1 visa with intent to AOS. You can AOS while already in the US, but you cannot leave and re-enter to AOS.

 

Whoops ok, so that's the last thing I'd want to do then. I guess I am grossly misunderstanding parts of how US immigration law works then. For the record, we did only start talking about marriage in the last month or two, after my last re-entry into the USA. So does that mean that as of right now, since we're considering marriage even as a hypothetical possibility (we are not even engaged yet), I cannot use my F1 visa anymore to exit and re-enter the country? The main reason I'm re-entering would still be to finish graduate school here, NOT to get married and immigrate... I'm caught of guard a little bit by all of this, since I do have conference trips planned already this summer outside the USA. So does that mean I should actively now plan NOT to get married until after I'm done with all of the trips I already have planned, and then start considering it again and start talking with my partner about it again after that? 

 

34 minutes ago, geowrian said:

I would highly suggest applying for AP. If you have it, then you can use it. No entry is guaranteed, but denial of entry with a valid AP document is exeedingly rare. You cannot use the F-1 visa to re-enter after filing for AOS - you have to use AP or else AOS is automatically abandoned.

Ok, this makes a lot of sense to me. That's what I had thought initially as well, until I talked with a couple who are already in the application process. In their case, the international student has not left the country at all since they applied for the AoS per advice from their lawyer. Their lawyer had told them not to use the AP precisely because it would abandon their F1 status. That being said, I don't know the details of their case and whether there is any sort of reason why he'd be at risk for denial. I'm really glad to hear that denial of entry with valid AP is exceedingly rare! 

 

34 minutes ago, geowrian said:

What you've heard is a considerable misunderstanding at best. There is no good reason not to apply for an EAD. Much like AP, it's better to have it than not have it. Leave your options open.

Actually using an EAD (or AP) does abandon F-1 status. But the authorized stay from the pending AOS application remains. The only potential issue would be if AOS was denied. But if that were to happen (for a reason that you can't just refile to fix), you have bigger issues to address already.

This also makes a lot of sense to me. So then, I would go on to apply for an EAD and AP and use them trusting that the AoS will not get denied. I had been thinking I should not abandon F1 status just to be safe, but it sounds like that's overly paranoid. 

 

[geowrian 22,338]

41 minutes ago, anbigu said:

Whoops ok, so that's the last thing I'd want to do then. I guess I am grossly misunderstanding parts of how US immigration law works then. For the record, we did only start talking about marriage in the last month or two, after my last re-entry into the USA. So does that mean that as of right now, since we're considering marriage even as a hypothetical possibility (we are not even engaged yet), I cannot use my F1 visa anymore to exit and re-enter the country? The main reason I'm re-entering would still be to finish graduate school here, NOT to get married and immigrate... I'm caught of guard a little bit by all of this, since I do have conference trips planned already this summer outside the USA. So does that mean I should actively now plan NOT to get married until after I'm done with all of the trips I already have planned, and then start considering it again and start talking with my partner about it again after that? 

I understand the confusion. Let me try to describe it another way - the purpose of an F-1 visa is to study, not to immigrate. Immigrating may be secondary to studying, but it's a visa that explicitly prohibits immigrant intent.

 

There's no issue with your most recent entry and wanting to stay. But there is an issue if you want to leave and return and stay. There is not an issue just because you want to eventually immigrate, but it would need to be via an immigrant visa (or via K-1, H-1B, etc. visa that permits immigrant intent).

 

So if you wanted to leave the US and return - but cannot wait within the US for AP - I would suggest looking at a CR-1 (spouse of a US citizen) visa. You can continue to use your F-1 visa while that process is ongoing, but you would need to obtain the actual visa abroad. It also may make getting a new/renewed F-1 visa more difficult as that requires non-immigrant intent but a pending spousal visa implies immigrant intent. Unfortunately, there is no solution that works well for every case...something will have to give. You can't have your cake and eat it too.

 

The option that appears to be of least resistance would be to legally marry sooner (you can have a bigger celebration later if desired), file for AOS + AP + EAD, and wait that out. Then you can travel, work, etc. while waiting out the green card interview in the US.

 

41 minutes ago, anbigu said:

Ok, this makes a lot of sense to me. That's what I had thought initially as well, until I talked with a couple who are already in the application process. In their case, the international student has not left the country at all since they applied for the AoS per advice from their lawyer. Their lawyer had told them not to use the AP precisely because it would abandon their F1 status. That being said, I don't know the details of their case and whether there is any sort of reason why he'd be at risk for denial. I'm really glad to hear that denial of entry with valid AP is exceedingly rare! 

You'll see lawyers advise this quite often. The risk of being denied re-entry is > 0%, so it's always safer to say don't leave. It's exceedingly uncommon to be denied re-entry on AP, but the only guaranteed way to avoid being denied re-entry is to not leave.

People use AP all the time without issue. Check out the other threads on this site...hopefully that can relieve some anxiety/stress about AP.

 

41 minutes ago, anbigu said:

This also makes a lot of sense to me. So then, I would go on to apply for an EAD and AP and use them trusting that the AoS will not get denied. I had been thinking I should not abandon F1 status just to be safe, but it sounds like that's overly paranoid.

You can maintain F-1 status up until you need to travel abroad still.

I don't like to say something is paranoid, but people do AOS from F-1 without issue all the time. There's nothing wrong with having a backup plan, but personally I would focus on presenting a strong AOS case more than worrying about what happens if AOS is denied.

Note that even if AOS is denied for something minor like not responding to an RFE, refiling is an option. It's not like you're just stuck without any options over a clerical mistake.

[hanoverfc 0]

Hello - I'm in a similar situation and would love to know what path you ended up taking. 

Were you able to renew your F1 visa on your trip?

[Riley and SP 17]

On 10/6/2020 at 9:46 PM, hanoverfc said:

Hello - I'm in a similar situation and would love to know what path you ended up taking. 

Were you able to renew your F1 visa on your trip?

Hey I am not the OP. But was in a similar situation. Although I am in law school, we ended up hiring a lawyer because immigration law is a a wild Wild West. I extended my I-20 till January 2021 (a month after we got married but before we filed for AOS) but did not travel outside of the US to renew my F-1. Also, for the I-20 extension there did not ask you any questions as to intent to stay - the only question on the form is if you have sufficient funds - so my lawyer believed that’s fine. 

 

In fact, we cancelled a trip we have planned while my F-1 was still valid. We were planning to visit my family last Christmas and had booked everything- plane tickets, hotels, NYE in Paris trip. We ended up loosing about $3000 for non refundable tickets, at least the hotels were refundable. Although we weren’t even married at the time, my lawyer told me I can’t re-enter US on F1 when I have already have intention to get married and apply for a green card. May be that was over cautious but we decided to listen to the lawyer. 

Edited October 13, 2020 by Riley and SP