Can a LPR petition her spouse if her admission was with a K2 visa?

[TangoVictor 37]

My fiancé, soon to be wife (literally, 4 days away 😬), entered the country 4 years and 8 months ago with a K2 visa.  Her mom married a US citizen and she came to the US a year after.

My understanding is that a LPR can`t petition her spouse for 5 years after getting her green card if her status as a resident was product of a marriage. So... does this apply to our case? Is she elegible to petition me (F-1 student)? 

[aleful 1,905]

hi

 

what happened that her stepdad didn't file for her? she should have gotten her GC through her stepdad

 

 

[Just Paul 4,595]

1 hour ago, TangoVictor said:

My fiancé, soon to be wife (literally, 4 days away 😬), entered the country 4 years and 8 months ago with a K2 visa.  Her mom married a US citizen and she came to the US a year after.

My understanding is that a LPR can`t petition her spouse for 5 years after getting her green card if her status as a resident was product of a marriage. So... does this apply to our case? Is she elegible to petition me (F-1 student)? 

You fiance's mother isn't marrying you so the 5 years doesn't mean anything.

 

Your fiance, the K2 immigrant, can file for you.  I guess the questions is whether you can stay.

 

Edited September 17, 2020 by Paul & Mary

[aleful 1,905]

my bad

 

she did get her gc, 

 

 

[Just Paul 4,595]

GF came in on a K2.   She can marry and sponsor anyone she wants.   She didn't obtain her green card by marrying someone.

 

Was there confusion in the last answer you got?

 

[TangoVictor 37]

14 hours ago, Paul & Mary said:

You fiance's mother isn't marrying you so the 5 years doesn't mean anything.

 

Your fiance, the K2 immigrant, can file for you.  I guess the questions is whether you can stay.

 

Thank you for your answer! My i-20 expires Nov 1, 2020. MY understanding is that I should remain with my F-1 status until getting the NOA1, do you know if its true?

[Mollie09 1,543]

7 minutes ago, TangoVictor said:

Thank you for your answer! My i-20 expires Nov 1, 2020. MY understanding is that I should remain with my F-1 status until getting the NOA1, do you know if its true?

You need to be in status until you receive the green card. You need to be in status to adjust status.

[Just Paul 4,595]

13 minutes ago, TangoVictor said:

MY understanding is that I should remain with my F-1 status until getting the NOA1, do you know if its true?

You need to file the I-485 as soon as possible to maintain a status.  The NOA1 for the I-485 imparts "status" until the green card comes a long time later.  The NOA1 for the I-130 does not have anything to do for status.

[TangoVictor 37]

Just now, Paul & Mary said:

You need to file the I-485 as soon as possible to maintain a status.  The NOA1 for the I-485 imparts "status" until the green card comes a long time later.  The NOA1 for the I-130 does not have anything to do for status.

Ok so we´re getting married Monday and filing the I-130 and I-485 (with I-765 & I-131) concurrently on Tuesday. So what Mollie09 said is not true and I can stay here and not be out of status if I receive the NOA1 before my I-20 expires? Worst case scenario I could apply for an I-20 extension at my school and they`ll do it for 2-3 more months but I`m trying not to break the bank here

[Just Paul 4,595]

Before the I-94 expires file the I-485 and your stay is authorized.  A visa number is available for F2A (since category is current in Visa Bulletin). Make sure your I-130 / I-130A and I-864s (spouse and sponsors) and I-864A (sponsor's spouse - if applicable) are correct and complete.  The I-485 will not be approved with the I-130 being approved.   Your AP and EAD can be move along after the I-130 is scanned and NOA1 generated.  This process does take longer for a concurrent filing then a K1.  Obviously you are doing this now in part because of the coming fee increases.

 

If you wanted to do more schooling then extend the F1 prior to filing petitions.  You options are very limited until getting the AP/EAD or green card.

Edited September 17, 2020 by Paul & Mary

[Demise 1,290]

On 9/16/2020 at 9:32 PM, TangoVictor said:

My fiancé, soon to be wife (literally, 4 days away 😬), entered the country 4 years and 8 months ago with a K2 visa.  Her mom married a US citizen and she came to the US a year after.

My understanding is that a LPR can`t petition her spouse for 5 years after getting her green card if her status as a resident was product of a marriage. So... does this apply to our case? Is she elegible to petition me (F-1 student)? 

Yes she can petition for you in F2A. Since the category is current right now you can concurrently file I-485 for adjustment of status with the I-130. Note that you have to maintain your F-1 status until at least when USCIS gets your I-130/I-485 packet.

 

The 5 year requirement only applies if she herself were to marry someone, get a green card via that marriage, and divorce, since this is not the case (since she didn't marry anyone), it doesn't apply.