A note that it's easy to "overstay" a visa when waiting for a green card interview - the wait times are often in the 6-16 month range, and if you leave the country you'll be considered to have abandoned your "petition to adjust status". It's a catch-22, and it looks like the only recourse is for an immigration lawyer to file a habeas corpus petition in federal court.
It's also worth pointing out that the nature of the green card interview is largely up to how the interviewer feels about you. It's a terrifyingly subjective experience.
There was an error in my wife's green card application that many people (including myself and our lawyer) should have caught. Our lawyer promised us that during the final interview this could be trivially corrected on the spot. Despite many smiles and laughs during the interview it's clear the interviewer didn't approve of how my current wife and I met (it involved a divorce) and so he decided that he couldn't possibly correct the error during the interview, and that while we passed, we would need to wait nearly a year for the correction.
While this was frustrating the interviewer could have just as easily decided, at his discretion, that our marriage was not "real" (despite the fact that the reason for his objection was ample evidence that it was quite real), so it was a pain we had to suffer. I've spent enough time working with petty bureaucrats to know it's better to accept whatever means they try to prove their own power than to fight it.
Is it possible your lawyer was just wrong when he told you that?
Like the interpretation of the situation seems to hinge on that, because if we didn’t know that it was usually fixed on the spot, then it could very well just be protocol to go through a correction process that takes awhile (for other dumb reasons but not because someone was wronging you personally).
Errors happens on immigration forms all the time. Many of them aren't a big deal and can be corrected but there's a right and wrong way to do it. Fixable errors include things like failing to mention all your employers that you worked unauthorized or your name having a different spelling in certain cases. Since unauthorized work is forgiven if marrying a US citizen, the omission of employment is a correctable error.
The right way to fix this is to type out the questions you want to correct into a document (called an errata sheet) with the corrected answers and to hand that to the visa officer with your ID at the start of the interview. The reason you want to do this is you want a paper record that you volunteered this information. Anything verbal can be argued that you only revealed such information when confronted and that's a problem.
So I don't know what your issue was. Errors with a divorce could be as serious as you weren't free to marry because at the time you got married your divorce wasn't finalized and that invalidates your entire petition and there's no correcting that.
Another big one is USCIS not believing your divorce is real. this happens if you get divorced in certain countries (eg Ghana, Nigeria) where apparently fradulent divorce decrees are a real problem.
It had nothing whatsoever to do with the divorce itself, I'm a US citizen and was (legally) divorced for several years before the interview (and my marriage). The error was a typo that the interviewer was informed about well in advance of our interview, and could have been corrected by changing a value in a field which our lawyer informed us had been done many times in the past for other couples.
It's required to overstay, and for the case of student visas, you must abandon the visa when petitioning to adjust status. The terms of the student visa are that you cannot have immigration intentions.
When this happens, you're present without a visa, but it's not illegal. You're on a "stay authorized by the attorney general".
I'm not sure if that has changed, but the " authorized stay" thing is the defense to being present without a visa.
It does make a lot of paperwork more difficult, like getting a drivers license, when as you can't prove status.
If you get married as an F1 student, it's completely fine (and encouraged) to continue your studies under your F1 visa while your I130 and I485 are pending.
There are differences here if you're marrying a US citizen vs a green card holder. If you marry a green card holder, you must maintain your status until you adjust status with your I485. If you marry a US citizen, being out of status is forgiven.
If you discontinue your studies, USCIS (particularly under this administration) might try and argue you obtained your student visa fraudulently to deny your marriage petition. The best thing you can do is complete your studies and then, if applicable, obtain OPT to further maintain status.
Any marriage where the immigrant spouse is out of status will be treated with more scrutiny by USCIS.
> If you discontinue your studies, USCIS (particularly under this administration) might try and argue you obtained your student visa fraudulently to deny your marriage petition. The best thing you can do is complete your studies and then, if applicable, obtain OPT to further maintain status.
There are two things that I'm not sure about:
– Is the distinction between studying (regardless of status), vs. being in status vs. having a visa? Because the three are different: you can enter as a student and study, and have your F-1 expire, and still maintain status per SEVIS.
– IANAL, but you get an EAD upon petitioning for an AOS – does that prevent you from applying for OPT?
You can have two (or more) separate petitions with USCIS.
For example, if you get sponsored by an employer for a green card and you marry a US citizen, you might ask which green card should you pursue? The answer is both. This is fine and encouraged.
This also comes up with people who apply for asylum. This can take years to adjudicate. What if they get married to a US citizen in the meantime? Generally, the advice is to maintain your asylum application AND apply for your marriage-based green card.
This doesn't just apply to green cards either. If you work on an H1B, it's completely fine to apply for a green card (through employment and/or marriage) at the same time. Some will point out that the H1B is a so-called dual intent visa that doesn't preclude immigrant intent but that's not really what that means because you can adjust status to a green card on a non-immigrant intent visa too.
"Immigrant intent" here really means if a consulate will issue you the visa overseas and if CBP will let you into the country if you've shown immigrant intent (which usually means filing an I130 or similar). Once someone files an I130 for you, you'll not be granted a student or visitor's visa from outside the US and if you have either, you might be denied entry at the border. Because those aren't dual intent visas.
A red flag for USCIS for visa fraud is applying for an F1 visa, coming to the US, stopping studying and getting married. To them it looks like you committed immigration fraud just to come to the US.
That's why I say you should continue your studies (and also not get married in the first few months upon entering the US on a student visa).
So there's really no studying out of status per se. If you continue your studies, your F1 is still valid. When you get your EAD or green card, you can study with that and terminate your F1 status.
If you fall out of status on an F1 for a certain period of time it might be difficult or even impossible to resume student status to study at the same or another institution. I'm honestly not familiar with the rules around this.
But you're just not really going to be studying in the US without any status.
Just for the record I went through this process this year with my spouse and a lawyer. My spouse did continue studying and had their i-130, i-485, and i-131, however the immigration office told our lawyer and said their F1 was no longer valid and that my spouse was under “authorized stay” not a visa any longer, especially for i-131.
This happened to someone I know. He was working on a TN visa, had his green card approved, and was waiting for an interview. He was not allowed to leave the country, but he lost his job, and had to leave the country because of the 60 days grace period of the visa. Because he left, he lost his green card application.
You both:
1. Can't leave the country because of immigration laws.
2. Have to leave the country because of immigration laws.
So there are three paths to getting a marriage-based green card:
1. You do what's called consular processing out of the country;
2. You adjust status in the country; and
3. A fiance visa (K1). I'm going to ignore this.
For (1), your US citizen or green card holder spouse will wil an I130 visa petition to show that you're legally married. USCIS will confirm that you are legally married (including both of you being free to marry) and then it gets sent to NVC (National Visa Center) and you get documentarily qualified. This whole thing can take 6-9 months. It can take substantially longer if there are certain risk factors as far as USCIS is concerned for fraud. Large age gap, certain countries of origins (particularly the Phillipines), etc.
Once you are documentarily qualified, the foreign spouse will apply for an interview at a foreign consulate. This used to be anywhere but as per a recent rule change by this administration, now has to be the country of origin, meaning if you're Canadian you have to do it in Canada not the UK or Italy or whatever.
This may not seem like a big deal but the wait in some countries can be years long, just for the interview.
While this is all pending, you likely will be unable to visit the US because you've shown immigreant intent so you'll be denied ESTA or a visitor's visa most likely. Or, if you have a visitor's visa, you may be denied entry at the border.
For a standard case, this whole thing will take about 2 years. There are a whole bunch of steps like biometrics, police checks, etc and there are cases where you may need waivers of inadmissibility (eg if you have a 3 year bar or have a felony conviction). Those waivers can add years.
For (2), the process differs if you're marrying a green card holder or a US citizen.
If you have a marry a green card holder, they file an I130 petition and you'll get a priority date. There is a quota for these green cards. When your priority date becomes current, you the file an I485 for your spouse. Your immigrant spouse must've remained in status for this entire time up to and including when the I485 is approved. Because of the quota, this can take years and people will often become US citizens before the process is complete.
There is no quota for immediate relatives of US citizens (including spouses, parents and children under 18). If you marry a US citizen, you generally file the I130 and I485 concurrently. You can optionally also apply for advance parole, which will allow you to travel (more on that below), and an EAD, which will allow you to work until you get your green card. At this time people often get their green cards before their EADs so many don't even apply for them currently.
So, traveling. If you have a pending I485 and you leave the US you have in the eyes of USCIS abandoned that I485. You are now out of the country and most likely will be barred from re-entering the US, forcing you to consular process. You might be able to return if you have an immigrant intent visa like an H1B but it's generally recommended not to travel at all while you have a pending I485 application if you can possibly avoid it.
If you marry a US citizen, being out of status and working without authorization are both forgiven. This isn't the case for a marriage to a green card holder I believe. But if you marry a green card holder and while your application is pending they become a US citizen (as often happens), then the US citizen rules apply anyway.
So, if you are on a TN visa and have a pending I130 and I485, you have two choices:
1. You can leave the country and go back to Canada. This will abandon your I485 (but not the I130) and will force you to consular process. You'll be gone for 1-2 years most likely and likely unable to visit. This is the safest option however but obviously most people don't want to be separate from their spouse for so long, understanbly; or
2. You accept that you will be out of status and you stay. Any overstay of less than 6 months generally isn't an issue although working unauthorized is if, for some reason, your marriage petition is withdrawn or denied. If you overstay 6-12 months, you have an automatic 3 year bar on returning should you leave. If you overstay more than 1 year, it's a 10 year bar.
In the current administration, I think there are zero marriage petitions that should be done yourself. You should have a lawyer. Any decent lawyer who will be able to lay out the options as I've described.
Assuming your case is fairly straightforward and you've already filed the I130 and I485, I'd generally suggest people just accept the overstay and adjust in the US although I can certainly understand the "cleaner" (but longer) approach of choosing consular processing instead, particularly if you are still in status and don't have any automatic bar due to a 6+ month overstay.
You're phrasing this a bit oddly. There isn't any immigration law saying he cannot leave the country.
There is a law saying that if you leave the country you abandon your green card application.
Combined with losing his visa and having to leave the country, this just means that the law says if you lose your visa, you lose your green card application too.
But you can always legally leave the country forever.
In that specific situation, no they weren't. The only legal action is to leave the country, so it's impossible to claim they're being compelled to do anything else.
But TFA says that it was people exactly in this situation who were apprehended by ICE and then set for deportation proceedings. According to the current administration you are NOT allowed to stay, and that's where the Catch-22 is.
The whole thing just further exemplifies the "cruelty is the point" ideal.
I remember reading that depending on which country you’re from, the waiting time can be years or even decades. Is that true? If so that’s crazy and cruel.
Country of birth does determine the "priority date" waiting list. Specifically for Philippines, Mexico, India and China. Due to demand. Everyone else is in the rest of the world bucket.
For those countries (especially India) the wait can be more than a decade.
Moving to a points based immigration system without country of birth consideration may one day happen.
Depending on what contributes to points it would encourage better English language abilities and skill sets from immigrants (eg winners being China and India, losers being Mexico)
Depends on the visa category. Family preference visas for siblings can have waiting lists in the decades. But family preference visas for spouses of citizens have no wait list. It's just the system is slow. We went through some of it long ago, her time here threw us into proximity, proximity turned to love. That meant an adjustment of status, her old visa became invalid when we applied, but you have permission to stay while such an application is being processed. A hair under 6 months from application to first interview, a hair under two years before she got conditional permanent residency. (And I think that timing was not a coincidence, they stretched it out to just below the point it wouldn't have been conditional.) I would be terrified to do that under the current administration.
This really depends on your relationship with the other person and your status (e.g. US citizen, permanent resident, etc). Long story short, if you are the spouse or immediate family of an US citizen, there isn't any queue to get permanent resident status aside from whatever time it takes the US government to process the various forms. That time can be substantial, e.g. 2-3 years but it's nothing like the multi-year wait that a spouse of a permanent resident needs to go through just to apply for permanent resident status.
In many circumstances - including when that person is married to a US citizen, or when they'll likely be killed on return to their country of birth - it is indeed crazy and cruel.
(In more ordinary circumstances it's merely arbitrary and unjust.)
Yes, this is by no means only a U.S. problem. Some countries are worse, even where birth rate trends seem like they should make it more obviously self-destructive. A tendency towards xenophobia seems to be an unfortunate human universal, although one we can sometimes overcome.
The issue is spousal visas. I did not seek to marry a foreigner, our relationship was proximity turning into a whole lot more. We consider it cruel to tear apart couples.
This is a misrepresentation. Some of these people entered on the K1 which REQUIRES marriage within 3 months. They get married 18 months later and wonder why they're getting deported for a giant visa overstay. It's fraudulent, you enter on a visa, explicitly promise to marry quickly, do not do so and expect no repercussions.
