phoenix1

Hello,

My wife and I are recently married in California. I am a Permanent Resident and my wife is a J-1 visa holder. Her J-1 program will end in September 2008, after which she will have an additional month to stay in US. She will be out of J-1 status by October 2008. Her J-1 visa has no "not allowed to enter US" 2-year limitation. I spoke with two attorneys on the phone, and both of them seem to indicate that the only way to keep my wife in the US is to have her change status to F-1 (i.e. go to school), and file for I-130 in the future.

Recently, an LAX immigration officer has insisted that my wife can stay in the US as long as she files for I-130 and receive the I-797 receipt before she runs out of status. Can this plan work? Does anybody know where I can find the clause that specifically says that a petitioner is allowed to stay in the US as long as he/she has an I-797 receipt. What status does the I-797 receipt grant my wife, without having a valid visa? Seems odd to me.

I'm trying to think of the best strategy to keep my wife in the US after her J-1 expires. I am not sure if I can file F-1 and I-130 at the same time. Here are two options I was contemplating:
1) File for F-1, then file I-130 after F-1 is approved. (She stays in US)
2) File I-130, I-485, work visa (I-???), advanced parole concurrently (not sure if 2+ months is enough to get the paperwork required to keep her in US)
3) File I-130, I-485 (if we don't make it with Option 2, she goes home, and I'll file V-1 3 years after the priority date and try to bring her back?)

Thanks for your advice.

hobbes79

The 2-year home residency requirement has the possibility of being waived. Though without knowing every detail about your wife (EDIT: and yourself as the PR), can't know for sure. Might be worth discussing with a lawyer though:

http://travel.state.gov/visa/temp/info/info_1296.html

ian-mstm

When will you be eligible to naturalize?


You can certainly file an I-130 to get the ball rolling (and upgrade it if/when you become a USC), but I'm not sure that simply filing the I-130 will necessarily keep her in status.


This will probably work.


Since you are not a US citizen, you can not file an I-485 until her Priority Date becomes current... and that will be several years away at best.

Ian

ian-mstm

I believe he indicated that she has *no* 2-year HRR.

Ian

hobbes79

You're right... mis-read it.

Apologies

Alix

You can apply for F1 and I-130 at same time. Have you thought about K3?

With F1 she will have to be full time student. Make sure she complys with this during her stay as F1.

Good luck!

meauxna

Since the petitioning spouse is a Permanent Resident, the K-3 visa is not available to his spouse (US citizen sponsors only).

A filed I-130 absolutely does NOT give the beneficiary permission to stay in the US while waiting. If it did, there would be no realy need for the Visa Bulletin and the hundreds of thousands of people who are waiting outisde the gates for a visa number to come current so they can use that I-130.
Ian, what else were you thinking of that I have missed?

This is the reason the I-485 may not be filed now; the beneficiary will not have a visa number current for 4-5 years (as the spouse of a PR).

The missus must find her own way to stay in the US, independant of her LPR spouse.
As soon as he swears in at his naturalization oath ceremony, they can upgrade the petition and she can file I-485 (if she's still in the US at that time).

phoenix1

It's only been a year since I received my PR, four more years to go. I have no intention of being naturalized, but the circumstances may force me to do so. My initial plan is to apply for a V-1 for her 3 years after filing I-130. But after looking closely, V-1 is only eligible for petition filed on/before December 2000, which means she'll have to wait 5-7 years for I-130.

I guess the only safe option for her to stay in US immediately is through F-1. Hopefully she doesn't mind going to nursing school.

Thanks for all your advice.