Can my wife stay in usa?
 

Dear All,


Background: I am a US.citzen, my wife is from china whom we studied together in college.

Question 1)
I am a bit confuse on what to do. My and my wife recently got married and I understand I need to file a I-130 petition. However, she can only stay in USA LEGALLY (with a visa) until September. So is she forced to go back to her country even though she is married to me and the forms (i485 and others after I got approval of i-130) are processing?

Question 2)
I searched up online and it saids i130 probably take 1 month to get the approval for me to file other forms. Can she stay in usa with me for the time being?

Re: Can my wife stay in usa?
 

So your wife is currently in the USA? What is her status right now in the USA? Is she a student on an F-1 visa?

I'm not sure where you got that information, but it takes much longer than 1 month for an I-130 to be approved.

If your wife is currently inside the USA, with a legal status, for example an F-1 visa, then you can file an Adjustment of Status (AOS) package for her to become a US Permanent Resident (i.e., get a green card). This way, she will not have to leave the USA. Once the AOS is filed, she is legal to stay in the USA until a decision is made on the AOS (about 6 months or so). If approved, she receives a green card.

Read the Wiki Guide on AOS, and then come back with any questions: http://britishexpats.com/wiki/Adjustment_of_Status

If I have misunderstood the scenario, please let me know.

Rene

Re: Can my wife stay in usa?
 

She is under F-1 visa right now. So for the time being I need to file an AOS for her in order to extend the for the I130 petition?

Re: Can my wife stay in usa?
 

She is under F-1 visa right now. So right now I need to file an AOS in order to buy time for the I-130 to go through?
I am a bit confuse, I thought i485 can only be filed after i got i130 approval, but AOS requires i485.

Re: Can my wife stay in usa?
 

You are confused. Did you read the link I posted?

For an AOS application, all the forms and evidence get sent in together, all in one package, all at the same time, to the same address (the one on the I-485).

Rene

Re: Can my wife stay in usa?
 

I understand. I took a bit of time doing my research before. From my understanding the very first form to file is i-130, THEN we will proceed to file a AOS which is i485. However, you told me otherwise, since I130 takes a while and my spouse's visa will expire before then; I need to file "something" to extend her stay in USA. So what is that "something" is it i-485? i-765(OPT) or something else?

Re: Can my wife stay in usa?
 

No, that is incorrect. When filing for AOS, all forms go together. You do not file the I-130 first. The I-130, I-485, I-765, I-131, I-864, and medical exam results all get filed together.

You need to do more research before filing any paperwork.

Rene

Re: Can my wife stay in usa?
 

OK thank you.

Re: Can my wife stay in usa?
 

The expiration date on your wife's visa is irrelevant, anyway. It's the date on her I-94 which is important, that's the date she is supposed to leave the USA. Many students on an F-1 visa have the notation "D/S" on their I-94, which means Duration of Status, which means they are allowed to stay in the USA as long as they are fullfilling the requirements of the F-1 visa (full time study at the approved university). So don't worry about the visa expiration date.

The act of filing the AOS package is what "extends" your wife's stay in the USA beyond the date of her I-94.

OPT is something unrelated to filing AOS. OPT meand Optional Practical Training. That is something your wife can do after she graduates, it's a year of being able to work after graduation, in hopes of her finding an employer to sponsor a work visa. She doesn't need to do OPT at all, because by filing AOS (including form I-765 for EAD), once she has EAD (Employment Authorization Document) in hand, she can work for whoever she wants.

I don't know if you're getting confused with some other immigration methods, or what, but the key phrase you need to research is "Adjustment of Status". If you really can't figure it out, and you don't trust us on here telling you to file all the forms together in one package, then please have a 1-time consultation with an immigration attorney who can help you start the process.

I would just hate to see you file the I-130, then sit back and wait for 5 or 6 months for the I-130 approval, when there is a clear path open for her to adjust status within that amount of time.

Rene

Re: Can my wife stay in usa?
 

She graduated as of may 2013.

I am confuse on the i-485 because in the form it requires some sort of prior approval of a document which I have none.

This is the list.
1)
I am applying for an adjustment to permanent resident status because:
a) an immigrant petition giving me an immediately available visa number that has been approved. (Attach a copy of the approval notice, or a relative, special immigrant juvenile, or special immigrant military visa petition filed with this application that will give you an immediatly avalible visa number if approved) <-- i don't have such thing
b) My spouse or parent applied for adjustment of status or was granted lawful permanent residence in an immigrant visa category that allows derivation status for spouses and children.
c to h etc.... (max word limited)

2)
Just to confirm my wife's non immigrant visa is her F-1 right?
In part 3 section B i485 asked "list your present spouse and all your children etc..." she listed me (husband, U.S Citizen) and there's a checkbox "Applying with you?" what does that mean? Should I check it?

3)
Also the tricky part about our application is that we are moving from PA to CA August 06. However, I still haven't decide where to stay, I do not have the address that we can put in any of the form in order to prove we are going to move together.

btw, Noorah101, thank you for your time.

Re: Can my wife stay in usa?
 

OK, so she's already out of status, if she's not in school anymore. That's OK. Get the AOS filed ASAP. It should not be a problem.

Rene

Re: Can my wife stay in usa?
 

Not just the AOS but the I-130 as well.

You cannot file for adjustment of status without the I-130 unless she is here under an approved K-1 Fiancee Visa.

I believe this is where you are getting all confused.

You need to file all the forms that Noorah101 told you about earlier and that includes the I-130. The I-130 will be adjudicated at the same time as her I-485 for adjustment of status. You DO NOT have to file the I-130 first and then wait for it to be adjudicated.

Since she is out of status .... file all the forms together along with the medical.

Since you are having a difficult time grasping what needs to be done, perhaps a good thing would be for you both to have a consultation, if not retaining, an immigration attorney.

Good Luck and please take it slow. Only she is applying not you. You said you were a USC.

Re: Can my wife stay in usa?
 

Right. When I said "AOS" I meant all the required paperwork for an Adjustment of Status case from F-1 status, including the I-130, I-485, and all other paperwork/evidence/forms/fees.

Rene

Re: Can my wife stay in usa?
 

No you do not have this. In place of that you will submit the I-130 with the I-485.



Yes

You are a US Citizen, you don't need to apply for the right to live in the US.


Why is it tricky? Do you know the address you will be living at in California? If so, use that address for filing and file at the correct place. If you don't have the address where you will be living, then file it when you get to California? Why is it tricky? You are looking for problems that do not exist.

Re: Can my wife stay in usa?
 

But he doesn't seem to grasp that, Rene. He may have been through college but like the majority of people when it comes to filling out forms and dealing with the unknown, they get confused easily.;)