Girlfriend with F-1 Visa and I want to get married

[ToastedMuffin 4]

I'll try to keep this brief.

 

My girlfriend and I have been dating for a while and we want to get married. She is on an F-1 Visa which I believe should be valid for another 3ish years or so (I should ask her to clarify). We both feel we want to get married, but we are not engaged or married yet. Originally we wanted to get get engaged early next year, then get married and do a reception in her home country, and do a reception in the US after that, but after researching a while and reading this forum, I've concluded that this is a bad idea.

 

So here's my plan, please let me know of any potential flaws you see based on your own experience:

1. She says she has to go back to her home country next spring, so I can go meet her family but we'll wait until AFTER she returns to the US in the spring to be engaged. As long as we are not engaged or married her only reason to be in the US is to study, so I don't see any issues of intent here as far as USCIS is concerned. I'm not sure how long is necessary to wait to be engaged after she returns (I don't want to wait at all, ideally it would only be a few weeks). We want to get married at the end of next summer if possible so we can avoid the hassle of trying to move in together during the middle of a semester.
2. After getting married in August, wait until the end of the year to apply for the AOS. I don't want to mess with the 90-day rule or whatever it is.
3. When we apply for the AOS, also apply for the I-131. If lucky, we'll get that in time to do something in her home country next year and do the original honeymoon abroad we wanted to do.

 

Are there any potential problems here? I don't want to do anything to jeopardize her status and cause us to be separated for a long time and disrupt her studies, so I feel that we should wait to decide to be engaged until she knows she can be in the US through the length of the AOS process (with the hope we can do something with the approved parole). Additionally, I met her after she had already been in the US for a few semesters, so her intent was originally to study (which she made so painfully clear to me when I was trying to date her after I met her and was interested).

 

Also I have another question. I'd like to avoid using a lawyer as it is expensive and we have some time before she graduates. If we meticulously fill out the forms ourselves will that be okay? If there happens to be an error, does UCSIS send it back, or do they simply reject it? Would we have to pay the fees again?

Edited October 2, 2020 by ToastedMuffin

[FattieBanton 35]

I won't give any advice on any of your questions (there are far more experienced people here) except that last part.

 

You 100% most definitely and unquestionably DON'T NEED A LAWYER! 😎

[SalishSea 18,052]

There is no 90 day rule.

 

She cannot enter the US on a non-immigrant student visa with the intent to marry and AOS.  That is immigration fraud.

[ToastedMuffin 4]

20 minutes ago, Jorgedig said:

There is no 90 day rule.

 

She cannot enter the US on a non-immigrant student visa with the intent to marry and AOS.  That is immigration fraud.

So then does it make more sense to marry her at some point in the near future (seeing as she is in the US now), apply for the I-131, and then hope it arrives in time for her to be able to travel somewhere together next summer (if not the spring)?

[geowrian 22,338]

58 minutes ago, ToastedMuffin said:

So here's my plan, please let me know of any potential flaws you see based on your own experience:

1. She says she has to go back to her home country next spring, so I can go meet her family but we'll wait until AFTER she returns to the US in the spring to be engaged. As long as we are not engaged or married her only reason to be in the US is to study, so I don't see any issues of intent here as far as USCIS is concerned. I'm not sure how long is necessary to wait to be engaged after she returns (I don't want to wait at all, ideally it would only be a few weeks). We want to get married at the end of next summer if possible so we can avoid the hassle of trying to move in together during the middle of a semester.
2. After getting married in August, wait until the end of the year to apply for the AOS. I don't want to mess with the 90-day rule or whatever it is.
3. When we apply for the AOS, also apply for the I-131. If lucky, we'll get that in time to do something in her home country next year and do the original honeymoon abroad we wanted to do.

 

Are there any potential problems here? I don't want to do anything to jeopardize her status and cause us to be separated for a long time and disrupt her studies, so I feel that we should wait to decide to be engaged until she knows she can be in the US through the length of the AOS process (with the hope we can do something with the approved parole). Additionally, I met her after she had already been in the US for a few semesters, so her intent was originally to study (which she made so painfully clear to me when I was trying to date her after I met her and was interested).

While she may have intent to study, the issue is she cannot have intent to enter and stay. At each and every entry on the F-1 visa, she must intend to return home before her status expires. Just because she would also be using the visa for a legitimate purpose doesn't mean she can use it for an illegitimate purpose, too.

See INA 212(a)(7)(A)(i)(I) - if she intends to immigrate, she must be in possession of an immigrant visa (or other visa that permits immigrant intent) at the time of POE.

 

No such thing as a 90 day rule for AOS.

 

The legal options are to either marry & AOS before she leaves, or marry (anytime) and start the CR-1 visa process. This would lead to an immigrant visa obtained abroad.

(Option 3 is a K-1 visa, although that seems very impractical in this case...it's only mentioned for completeness)

Edited October 2, 2020 by geowrian

[ToastedMuffin 4]

It seems that a CR-1 Visa would lead to a disruption of her studies and a separation of 8-10 months. The easiest way from what I've gathered here would be to marry her early next year (February or March-ish), then apply for the relevant documents including the I-131 travel form.

 

I don't see how it is fraud however from a legal standpoint for her to come to the US on an F-1 Visa if we are not engaged. She could break up with me tomorrow and I would be none the wiser. If getting married more quickly is not feasible for her, why not postpone any decision about engagement or marriage or staying in the US until we have dated for a longer period of time?

Edited October 2, 2020 by ToastedMuffin

[geowrian 22,338]

9 minutes ago, ToastedMuffin said:

It seems that a CR-1 Visa would lead to a disruption of her studies and a separation of 8-10 months.

Not technically. She can hold and use an F-1 visa while waiting out the CR-1 visa process. Then just return abroad for the final steps at the consulate and the interview + visa issuance.

Although if she needs to renew her F-1 visa, having a USC spouse would be a tie to the US that would need to be overcome. This also applies at each and every entry on an F-1 visa.

So there is a risk, but nothing explicitly prohibits being a student while waiting out the consular process.

 

9 minutes ago, ToastedMuffin said:

The easiest way from what I've gathered here would be to marry her early next year (February or March-ish), then apply for the relevant documents including the I-131 travel form.

That may be the best option.

 

9 minutes ago, ToastedMuffin said:

I don't see how it is fraud however from a legal standpoint for her to come to the US on an F-1 Visa if we are not engaged. She could break up with me tomorrow and I would be none the wiser. If getting married more quickly is not feasible for her, why not postpone any decision about engagement or marriage or staying in the US until we have dated for a longer period of time?

Nothing in the law mentions anything about being engaged relating to fraud. That part is not a factor. Intent to stay is not determined solely by being formally engaged, being married or not, etc.

The issue is - per the INA section referenced before - that one must be in possession of a valid immigrant visa if they intend to remain in the US. An F-1 is a non-immigrant visa. As such, it cannot be used as a means to enter the US and stay. So she must intend to leave the US.

 

That's the way the law is written today. It is done this way so people don't obtain other visas and bypass the much longer immigrant visa process (F-1, B, etc. visas take days to weeks to obtain versus over a year).

[carmel34 3,650]

4 hours ago, ToastedMuffin said:

so her intent was originally to study

You can get married in the US now and file AOS since presumably she did not enter with intent to get married and stay in the US.  Just know that the AOS process takes time (6 months to a year), and in that time she cannot leave the US.  If she does, the AOS process would be abandoned.  The problem with your current plan is when she leaves the US and returns next year using her F-1 visa, it would be with intent to get married, stay, and file AOS, which as others have pointed out is visa fraud.  If getting married and filing AOS now is not an option (i.e., you want to meet her family first, and that cannot happen until next Spring), I recommend that after getting married (can happen anywhere in the world), you file a petition for a CR-1 visa for her.  She can enter the US on the F-1, so that you can be together during the process, as long as she explains at POE that her husband lives in the US and that she has a pending I-130 petition, which they can easily see by looking her up on their system.  During the year waiting on the CR-1 she can be with you, even travel outside the US and return, using the F-1, at the discretion of CBP officers, as long as the F-1 is valid and she continues her studies.  Then after the petition is approved and a visa interview scheduled (a year or more from filing the initial petition), she would travel to her home country for the visa interview, receive the visa, and re-enter the US on the CR-1 visa.  The risk with this option is that any time she attempts to enter the US on the F-1 visa, she could be turned away by a CBP officer if they are concerned that she might stay and adjust status.  If that happens, she would have to stay in her home country until the visa interview and she gets the visa in her passport.  Good luck!

Edited October 2, 2020 by carmel34

[ToastedMuffin 4]

Thanks to everyone for the replies so far. It seems to me based on current circumstances the safest and most anxiety-free option is to get married while she is here and have her wait until the process is complete to travel abroad (or at least until the Advanced Parole, if that's a viable option). I suppose I'll have to talk more with her about this, but thanks to modern technology I can still "meet" her family, just not in person. Even though this could cause some short-term pain (she wouldn't be able to return home for a little while after getting married), I think in the long-term this would be what's best. I don't want her to risk delaying her studies, as that would be a shame. The only real hurdle is convincing her family, but just because she can't go back there temporarily doesn't mean they can't come here. And I would certainly be willing to take the financial hit of paying for a couple of tickets to get them over here for a few weeks if that is what it takes to win their hearts to this plan. Thanks for the advice everyone!

[HRQX 4,145]

11 hours ago, ToastedMuffin said:

And I would certainly be willing to take the financial hit of paying for a couple of tickets to get them over here for a few weeks if that is what it takes to win their hearts to this plan.

In which country are they in? And which country are they citizens of?

[Orangesapples 1,954]

You're already engaged. You are both planning to get married, this is what engaged means. 

 

You said she's planning on going home in the spring. If you file soon, there is a good chance that the advance parole will be approved by then. No guarantees of course. 

 

17 hours ago, carmel34 said:

You can get married in the US now and file AOS since presumably she did not enter with intent to get married and stay in the US.  Just know that the AOS process takes time (6 months to a year), and in that time she cannot leave the US.  If she does, the AOS process would be abandoned.  

Not entirely true. OP should also file for advance parole concurrently with AOS and she can leave the country as soon as it's approved. No need to wait for AOS to be completed. 

 

OP, it's best to get married now (a quick courthouse marriage will do), file and do a big ceremony with her family later if it's important to you. 

[ToastedMuffin 4]

5 hours ago, HRQX said:

In which country are they in? And which country are they citizens of?

I prefer to post as little information about my situation as necessary when seeking advice because I consider this to be part of my private life, but I did come here seeking opinions. So to "kind of" answer your question, I will say that she (and thus her family) come from an Asian country that is not China. I hope that helps with your question

[ToastedMuffin 4]

1 hour ago, Orangesapples said:

You're already engaged. You are both planning to get married, this is what engaged means. 

 

You said she's planning on going home in the spring. If you file soon, there is a good chance that the advance parole will be approved by then. No guarantees of course. 

 

Not entirely true. OP should also file for advance parole concurrently with AOS and she can leave the country as soon as it's approved. No need to wait for AOS to be completed. 

 

OP, it's best to get married now (a quick courthouse marriage will do), file and do a big ceremony with her family later if it's important to you. 

I appreciate your advice and suggestions. Perhaps I have not explained my situation adequately. Specifically, when I said "want", I was only expressing a desire, not a commitment. We are not committed to be married or engaged (which would include a formal proposal). She is my girlfriend, not my fiance. The reason being is that there are other considerations (such as getting to know her parents, and her getting to know mine) that preclude me asking her to marry me. As such, I have not proposed, and we are not engaged. Nothing is set in stone, we are only planning hypothetically and speaking in hypothetical terms because of the obvious hassle it is for an international marriage. It is clear that the difficulty of the immigration process should be taken into account before even proposing if things are to go well. It is possible to talk about marriage without being engaged.

Edited October 3, 2020 by ToastedMuffin

[Orangesapples 1,954]

15 minutes ago, ToastedMuffin said:

I prefer to post as little information about my situation as necessary when seeking advice because I consider this to be part of my private life, but I did come here seeking opinions. So to "kind of" answer your question, I will say that she (and thus her family) come from an Asian country that is not China. I hope that helps with your question

It matters where they're from. Japan or Korea - they can easily visit using the VWP. Cambodia or Vietnam - it's very unlikely they'll get tourist visas. But you don't have to answer here, just keep that in mind. 

Edited October 3, 2020 by Orangesapples

[Duke & Marie 1,389]

21 minutes ago, Orangesapples said:

It matters where they're from. Japan or Korea - they can easily visit using the VWP. Cambodia or Vietnam - it's very unlikely they'll get tourist visas. But you don't have to answer here, just keep that in mind. 

100% agree.. vwp vs B2 makes a big difference when wanting to return when you got a usc fiancé or spouse.. high risk countries e.g. Cambodia. Thailand, Vietnam will have a lot more problems 

at OP 

she can’t return on the F1 knowing your going going to get married and then adjust, it’s prior intent.. she has to have intent to go home at the end of her studies.. 

 

‘’best bet is to marry and file now and apply for AP‘/AOS while she’s here now, before she goes home next spring