Travel with i539 Pending

[SweBro 1]

Can you travel abroad while waiting for your i539 change of status to be approved?

[SusieQQQ 11,586]

Change of status is for someone in the US, if you leave the US you are no longer in the US... you will need a valid visa to re-enter -that is, an unexpired visa that is valid for the purpose for which you intend to stay in the US. (Presumably if you already had that you wouldn’t need an i539.) From what to what status are you trying to change?

Edited December 30, 2019 by SusieQQQ

[SweBro 1]

Thanks for your reply. 

I am a US Citizen. My girlfriend is a E2 dependent. They have been separated for MANY years and the "ex husband" had his GC approved which means her E2 status is now no longer valid. 

She sent the i539 to change to tourist, but has to go back to her home country in a couple of weeks to finalize the divorce so that we can move on and get her GC through my citizenship. 

Seems like a real moment 22 where she has to stay in the US to be legal(waiting for the i539), but also have to leave the country to finalize the divorce.(they have to do it in front of a judge) 

Did I explain this so you can understand?

Edited December 30, 2019 by SweBro

[SusieQQQ 11,586]

Well it seems to me the change of status application would be denied anyway as her intentions are not to be a tourist, they are to stay and marry you and adjust status.  It’s only a catch-22 because you are trying to circumvent the proper way of doing these things. (Have already if she was still using derivative status of someone she was separated from.) If she has to leave and she obviously cannot marry you before she leaves, then most likely she will end up awaiting visa processing in her home country. 

[SweBro 1]

1 minute ago, SusieQQQ said:

Well it seems to me the change of status application would be denied anyway as her intentions are not to be a tourist, they are to stay and marry you and adjust status.  It’s only a catch-22 because you are trying to circumvent the proper way of doing these things. (Have already if she was still using derivative status of someone she was separated from.) If she has to leave and she obviously cannot marry you before she leaves, then most likely she will end up awaiting visa processing in her home country. 

Very well put! 

So, leaving might be the only option. 

[Liam2021 583]

Please follow the regular procedure: Just ask her to leave and take care of that divorce. After that, both of you can getting married and process to I-130. That is the proper way.

[SweBro 1]

1 minute ago, H&T said:

Please follow the regular procedure: Just ask her to leave and take care of that divorce. After that, both of you can getting married and process to I-130. That is the proper way.

Definately! 

A couple of years in Europe will not be terrible either!!

[SusieQQQ 11,586]

By the way she should withdraw the i539 when she leaves, to prevent the likely denial going on her immigration record. It wouldn’t be an issue for an immigrant visa to marry you, but as you know things don’t always work out as planned, and if one day she wanted to visit the US in non-immigrant status it could be a problem. 

 

Good luck with everything!

 

[SweBro 1]

1 minute ago, SusieQQQ said:

By the way she should withdraw the i539 when she leaves, to prevent the likely denial going on her immigration record. It wouldn’t be an issue for an immigrant visa to marry you, but as you know things don’t always work out as planned, and if one day she wanted to visit the US in non-immigrant status it could be a problem. 

 

Good luck with everything!

 

Thank you for that tip! Dont you find it strange that it was several immigration lawyers IN THE USA recommending us doing it this way. Since the E2 becomes invalid, change to tourist, and when divorce is through, remarry and file the i130. 

[Boiler 45,486]

10 minutes ago, SweBro said:

Thank you for that tip! Dont you find it strange that it was several immigration lawyers IN THE USA recommending us doing it this way. Since the E2 becomes invalid, change to tourist, and when divorce is through, remarry and file the i130. 

Not really, presume they did not know she would need to leave in process.

[USS_Voyager 1,972]

For everyone information, the I-539 is considered abandoned (and will be denied) if the applicants leaves the US while it is pending, much like the I-485 for adjustment of status.

[SweBro 1]

2 hours ago, SusieQQQ said:

By the way she should withdraw the i539 when she leaves, to prevent the likely denial going on her immigration record. It wouldn’t be an issue for an immigrant visa to marry you, but as you know things don’t always work out as planned, and if one day she wanted to visit the US in non-immigrant status it could be a problem. 

 

Good luck with everything!

 

The i539 Application is not yet received by USCIS, they havent cashed the checks yet. Any guidance on what we should do here? 

[Boiler 45,486]

If she needs to go home then she needs to go home, what other option is there?

 

What status was she in when she filed to change?

[SweBro 1]

2 minutes ago, Boiler said:

If she needs to go home then she needs to go home, what other option is there?

 

What status was she in when she filed to change?

Yes, needs to go home. But we were not 100% until recent when the court date was scheduled. She was in a e2 dependent status. Question is how to withdraw the i539 application.

[SusieQQQ 11,586]

7 minutes ago, SweBro said:

The i539 Application is not yet received by USCIS, they havent cashed the checks yet. Any guidance on what we should do here? 

I’m unaware of any way to “catch” an application between mailing and acceptance.i think you’ll have to wait for that and then withdraw. Others may know better if something can be done?