If my I-129 petition gets denied, could I immediately file a I-130?

[Total-Opportunity 0]

Hi guys, not sure if this is the correct section to post so feel free to move the thread or let me know if I should delete it and go elsewhere.

 

 I searched around for an answer for this specific question but couldn't find an answer. I'm meeting an immigration attorney later this week but figured I'd look for some peace of mind in the time being.

 

I'm a 30-year old male foreign national, living in the US for a while. I was on a F-1 visa in grad school from 2016 to 2019, then on OPT from 2019 to 2020.

 

I submitted a O1 petition in August 2020 (at the end of my F1 OPT 60-day grace period), and just received an RFE in October 2020. Though not that worried about that (I have a solid case and a solid lawyer) it got me thinking of what I would do in case of a possible denial

 

I've been in a relationship with a US Citizen since April 2020, and it's been clear to both of us we'd get married someday. Only we were expecting that to happen in a year or two, especially with COVID making it harder for friends and families to get together for a ceremony.

 

If my O-1 petition gets denied in February/March 2021, I believe I will be ordered to leave the US immediately, as I would then be unlawfully present.

 

If my girlfriend and I were to hasten our plans and get married sooner than planned (let's say, a week or two after my O1 denial), would that cause us (or me?) any issues?

 

I know of the 90-day rule against marrying someone within 90-days of entering the US on a single-intent visa (my last entrance in the US was in late 2018), but is there some unwritten rule regarding marrying someone immediately after getting a visa denied? Would there be any benefit whatsoever to getting married BEFORE my O1 decision is made?

 

Thanks everybody in advance! Just created this account but I've lurked over the forums a great deal and it's always super helpful!

[SteveInBostonI130 3,483]

There is no 90 day rule.  One of those rumors that keep going around.

 

I would caution anyone to rush into marriage mainly for immigration purposes, even if the relationship is legitimate.  It puts your relationship into question - did the person marry me because he/she wanted it deep in their heart, or was it a knee jerk panic reaction because of a pending loss of status?

 

In your case, if you two are truly at the stage where marriage is right for you, then get married as soon as you can.  Overstays on visas are forgiven for spouses of US citizens and you will not have much issue adjusting status.  But the longer you stay out of status, the greater the risk of immigration violation enforcement.

 

[HRQX 4,145]

26 minutes ago, Total-Opportunity said:

I know of the 90-day rule against

USCIS doesn't have that rule: "Although referred to by DOS as a “rule” in its Foreign Affairs Manual (FAM), the 90-day rule is not a regulation. It is DOS guidance to its officers, and as such, the 90-day rule is not binding on USCIS officers." https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-3

[igoyougoduke 1,675]

Ahh the 90 day rule strikes another person... I wonder who spreads these rules 

[pushbrk 13,118]

Marry when you want and are ready.  File to adjust status once you're married.  Sounds like the delay in your marriage is related to arrangements for family and friends to be present.  It's easy to understand why your timing would change.  Have plenty of relationship evidence.

[Ontarkie 14,499]

~~Moved to AOS from Work, Student, and Tourist Visas, form IR1/CR1 P&P- the OP is already in the US.~~