Filing for H1B and AOS concurrently from F1 STEM OPT

[lazylady 6]

Hi everyone,

Does anyone know or have experience with filing AOS and H1B concurrently? I'm working in the US under F-1 STEM OPT, and my EAD card will expire 7/11/2020. I was very lucky to get selected in the H1B lottery with normal cap this year (after 2 years not getting selected), and my employer is filing the paperwork for my visa. I haven't heard any news yet about interview or if the petition is complete. Under cap-gap, I will be able to work with my current EAD until I get the final result for H1B visa.

 

At the same time, I am recently married to my US citizen husband, and we are considering filing for AOS for green card. If we file for AOS now, would that cancel my H1B petition? If so, should we wait until I get H1B visa result and then file for AOS? The idea is that if I get the H1B visa, in case our AOS application got denied we would still have time to resubmit AOS petition.  

 

Or should we file AOS now? I fear that my H1B might be denied, because we made an honest mistake and violated the 90 days guidance. I visited my home country for 2 weeks in Feb 2020, and entered the US under a renewed F1 visa. About 6 weeks later, my then boyfriend proposed while we were quarantined at home and we got married within 90 days of my last entry. I'm afraid that USCIS will consider this as a visa fraud and either way both my H1B and AOS will be negatively affected, if not denied. In short I just realized I completely messed up my chances and am panicking. Any help or advice is very much appreciated! We're also seeking immigration attorney's help this Monday, so referral are very welcome.

 

 

 

 

 

 

Edited May 31, 2020 by lazylady

[randomstairs 304]

Your H1B is a separate process and will not be affected by filing for AOS, nor the other way around.

 

So did you enter on F1 visa while you were already married? Or did you marry soon after entering on F1? Unfortunately that part is more concerning and you seem to understand why. You're saying that you re-entered on a renewed F1. Were you asked about your relationships in the US when you were applying? 

 

 

[lazylady 6]

Thank you for the info. 

 

I entered the US before my marriage. I entered the US on renewed F1 visa on 2/12, and then on 4/1 we got married. My F1 was renewed in via post office, no interview was needed, I was single (ie not married yet) at the time I entered so no one asked about my relationship.  

Edited May 31, 2020 by lazylady

[randomstairs 304]

Did you intend to marry him when entering the US on the F1 visa?

 

If you had no such intent the burden of proof is on you to convince USCIS that you had not. As you seem to understand, they presume that you misrepresented yourself when you entered. With sufficient evidence to the contrary you may be able to prove otherwise. (For example, show that your circumstances have changed since your entry.)

 

If you had intended to get married while entering on F1 - well, you know the answer. 

Edited May 31, 2020 by randomstairs

[HRQX 4,145]

8 minutes ago, randomstairs said:

Did you intend to marry him when entering the US on the F1 visa?

Intent to AOS. Regardless, not an issue; see Matter of Battista and Matter of Cavazos. Intent is determined at entry, not at the AOS interview.

Edited May 31, 2020 by HRQX

[randomstairs 304]

5 minutes ago, HRQX said:

Intent to AOS. Regardless, not an issue; see Matter of Battista and Matter of Cavazos. Intent is determined at entry, not at the AOS interview.

That was for the 30/60 day rule. It may apply to the 90 day rule too but it's still an issue IMO. 

 

[HRQX 4,145]

4 minutes ago, randomstairs said:

It may apply to the 90 day rule

From USCIS PM: "It is DOS guidance to its officers, and as such, the 90-day rule is not binding on USCIS officers."

[randomstairs 304]

1 minute ago, HRQX said:

From USCIS PM: "It is DOS guidance to its officers, and as such, the 90-day rule is not binding on USCIS officers."

I know. So?

[HRQX 4,145]

10 minutes ago, randomstairs said:

I know. So?

It's an important reminder.

14 minutes ago, randomstairs said:

an issue IMO.

Also reread original post:

1 hour ago, lazylady said:

and entered the US under a renewed F1 visa. About 6 weeks later, my then boyfriend proposed while we were quarantined at home and we got married

An issue when OP made decision to marry after most recent entry?? Seems unlikely that intent to AOS would be an issue.

Edited May 31, 2020 by HRQX

[randomstairs 304]

6 minutes ago, HRQX said:

It's an important reminder.

Also reread original post:

An issue when OP made decision to marry after most recent entry?? Seems unlikely that intent to AOS would be an issue.

I'm not disagreeing. It's their presumption that misrepresentation was involved. It's discretionary and so I suggested that they show that the circumstances have changed since her entry, which should be doable assuming that that's how it happened. Their first question, if it arises at all, will be in regards to her intention at the time of entry.

 

I'm not saying it's an insurmountable problem and am sorry if I made it sound that way. But is it a red flag? Yes, it is, to say the least. It's an issue and she knows it.  They should prepare the evidence that supports this narrative. Ignoring it as a "not an issue" would be irresponsible, IMO.

[geowrian 22,337]

USCIS would have to show that a misrepresentation occurred. The applicant will not need to demonstrate intent at POE.

[randomstairs 304]

1 minute ago, geowrian said:

USCIS would have to show that a misrepresentation occurred. The applicant will not need to demonstrate intent at POE.

So the burden of proof is on USCIS? Then what's the point of the "90 day rule"? 

[HRQX 4,145]

10 minutes ago, randomstairs said:

Then what's the point of the "90 day rule"?

Consular processing applicants are subject to it because they face DOS officers.

 

When Immediate Relatives (IR) AOS, then preconceived intent can't be the sole reason for denial of AOS.

Edited May 31, 2020 by HRQX

[geowrian 22,337]

27 minutes ago, randomstairs said:

So the burden of proof is on USCIS? Then what's the point of the "90 day rule"? 

For AOS, none.

[lazylady 6]

Thank you HRQX and geowrian, phew!

 

So far what I understand is:

1. H1B and AOS are independent and thus I can file for AOS now without affecting H1B petition in process

 

2. The 90 day guidance may be an issue and raise more questions during interview, but marrying within 90 days after entry under F1 by itself is not a ground for denial. 
 

My question now is that how should I prep for being asked about this during interview?  How does USCIS show that there was a misrepresentation (or if USCIS usually pursue visa misrepresentation)? 
 

What evidence can I use to counter misrepresentation presumption? Wedding ring receipt dated after my entry? I can’t really think of anything else, because we honestly didn't know this guidance and just married when we felt the time was right. If we had this planned out, we would have looked this up and waited for 90 days.