To return or not?

[My Le 0]

I have a friend, a US citizen, who is getting married in the US to a Vietnamese who is currently a foreing student in the US; however, her student visa will expire soon. He wants she keeps being here with him without having to return to Vietnam whether her visa expires or not doesn't matter. My friend said he has had his lawyer take care of that, and his lawyer has said that that is legally doable. Which means that since she's already been here legally via student visa and married to a citizen, she doesn't have to return to Vietnam to wait for the normal processing. Meanwhile from what I've read somehere here, this forum, it is said that she has to come back to Vietnam when her visa expires and wait for the usual processing as anybody else. My question is whether this is true (not having to return to Vietnam even though her student visa expires)? Then if her student visa is still valid in the time (months/years) to come, could she be here permanenty (without having to return to Vietnam and wait) with more ease?

Thanks.

[john_and_marlene 162]

I have a friend, a US citizen, who is getting married in the US to a Vietnamese who is currently a foreing student in the US; however, her student visa will expire soon. He wants she keeps being here with him without having to return to Vietnam whether her visa expires or not doesn't matter. My friend said he has had his lawyer take care of that, and his lawyer has said that that is legally doable. Which means that since she's already been here legally via student visa and married to a citizen, she doesn't have to return to Vietnam to wait for the normal processing. Meanwhile from what I've read somehere here, this forum, it is said that she has to come back to Vietnam when her visa expires and wait for the usual processing as anybody else. My question is whether this is true (not having to return to Vietnam even though her student visa expires)? Then if her student visa is still valid in the time (months/years) to come, could she be here permanenty (without having to return to Vietnam and wait) with more ease?

Thanks.

She can stay and adjust status legally. After they get married, they will file I-130 and I-485 together.

[Kelvin Ly 0]

I have a friend, a US citizen, who is getting married in the US to a Vietnamese who is currently a foreing student in the US; however, her student visa will expire soon. He wants she keeps being here with him without having to return to Vietnam whether her visa expires or not doesn't matter. My friend said he has had his lawyer take care of that, and his lawyer has said that that is legally doable. Which means that since she's already been here legally via student visa and married to a citizen, she doesn't have to return to Vietnam to wait for the normal processing. Meanwhile from what I've read somehere here, this forum, it is said that she has to come back to Vietnam when her visa expires and wait for the usual processing as anybody else. My question is whether this is true (not having to return to Vietnam even though her student visa expires)? Then if her student visa is still valid in the time (months/years) to come, could she be here permanenty (without having to return to Vietnam and wait) with more ease?

Thanks.

She can stay and adjust status legally. After they get married, they will file I-130 and I-485 together.

Because her intention when entering US was not for immigration, then now she marries a US citizen with the immigration intention (to stay in the US). The USCIS could potentially see it as fraud. But from what I heard, as long as she's been here for couple of months (3 months maybe?), and going to school as planned, then later get married, she should be ok. Just DO NOT show any evidence that she had planned to marry a USC before entering the US with her student visa. E.g. do not open a bank account with him, her address and his address should not be the same right after she entered US.

In summary, it's ok that she entered US with student visa, later on marry a USC to stay here. As long as she did not plan this, and she needs evidence to show for it. That's what I know. Others please clarify or correct me if i'm wrong.

Edited May 29, 2007 by Kelvin Ly

[sealedkiss 1]

My Le,

A few things:

1. Her visa expiration date does not determine when she has to leave the US. The date on her I-94 does. This date is usually 30-60 days after her program end date on (I20 for F1) or (DS2019 for J1).

2. The act getting marry here while on a student visa does not imply fraud whatsoever. The intention of coming here on a non-immigrant visa to get married IN ORDER TO stay here permanently would constitute fraud.

3. Once she gets married she does not have to file for AOS (adjustment of status) right away. If her I-94 date still allows her time, she could maintain her student status.

4. Most cases you would want to file for AOS asap to gain privileges (green card (although conditional one), work authorization, etc.) and to get it over with and because you would have to do this at some point anyway to stay in the US with your spouse. Exception is when you get married soon after entering the US, and following it quickly with AOS would raise a red flag.

5. She can file for AOS anytime, even if after her I-94 date. Normally after this date she would be considered "out of status," but as long as she submitted AOS paperwork, she would be allowed to stay here pending adjudication of her AOS application. She does not need to return home at any time while it's processing. If she's approved, then she does not need to return home at all. If she's not approved, then she will need to go home and start a new process.

6. Make sure her visa is not one with home residency requirement. E.g. for many types of J1 visas, you would need to return to your home country for 2 years before being allowed to return to the US, unless you get this requirement waived.

7. Some people in this forum will tell you to return home and go the fiance or spousal visa route, only because it is the "righteous" way to do things. Do what you want and qualify to do, not what other people "think" is the right way to do. If they love each other; they don't want to spend unnecessary time apart ; they meet the immigration requirements; they don't have preconceived immigration intention when coming to US to study; etc. you know the answer.

Feel free to follow up if anything is not clear. Best of luck.

sealedkiss

Edited May 29, 2007 by sealedkiss

[My Le 0]

Thank you all, especially to sealedkiss. I start understanding the subject better now. No more question for now.

(Sealedkiss: How could you be so knowledgeable of the matter? Unbelievable! Your input sounds so convingcing that I tend to believe immediately that you should be an expert about this.)

[sealedkiss 1]

My Le,

Glad to be of help. My personal situation about a year ago was the almost the same. She came here on a J1 (without home residency requirement) for a short 3-month job, and we were debating whether or not for her to return. I did a lot of research and consulting with lawyers back then. Members on this forum also helped me out. Eventually she returned home to take care of some family responsibilities and we filed for K1.

Best,

sealedkiss.

Thank you all, especially to sealedkiss. I start understanding the subject better now. No more question for now.

(Sealedkiss: How could you be so knowledgeable of the matter? Unbelievable! Your input sounds so convingcing that I tend to believe immediately that you should be an expert about this.)

[sealedkiss 1]

Clarifications to my previous post on #5:

"She does not need to return home at any time while it's processing." I should say she MUST NOT return home while it's processing, otherwise the AOS application is considered abandoned and she cannot return to the US. In the unlikely case that she wants to travel outside the US while AOS is pending, she can apply for Advanced Parole (travel document) (costs extra, takes ~3months) along with AOS.

"If she's not approved, then she will need to go home and start a new process." I should say, if her AOS is not approved, she can choose to appeal and wait to see what happens, or choose to return home and start a new process.

sealedkiss.

5. She can file for AOS anytime, even if after her I-94 date. Normally after this date she would be considered "out of status," but as long as she submitted AOS paperwork, she would be allowed to stay here pending adjudication of her AOS application. She does not need to return home at any time while it's processing. If she's approved, then she does not need to return home at all. If she's not approved, then she will need to go home and start a new process.