SanBernardino

This question arose in another thread. It has come up before and I think the discussion would benefit from more people's experiences and expert thoughts.

1. Is it possible to maintain F-1 status after marriage to a US citizen?
2. Does filing I-130/I-485 invalidate the F-1 status?
3. How does filing I-130/I-485 affect F-1 status?

4. Assuming F-1 is sometimes consistent with AOS, what can end the F-1 status?
4a. The obvious -- not following the terms of F-1 status, such as Full time enrollment, unauthorized employment, failing grades, etc.
4a. A person in current F-1 status applies for I-485/I-130/andI-765 and receives the EAD. If he works using the EAD, is the F-1 status ended?
4b. A person in current F-1 status applies for I-485/I-130/and advanced parole. If he travels and returns on AP, is the F-1 status ended?

5. Should an F-1 who marries a USC file immediately for AOS?

6. Why should a person bother to maintain F-1 status after filing AOS?

SanBernardino

My understanding of this is:
#1. yes
#2. no
#3. It shows immigrant intent, therefore making it improbable to enter on the F-1 visa in the future, but is not a problem for F-1s in the country in current F-1 status. Also, I suspect it may be unlikely that F-1 benefits, such as F-1 OPT would be granted. Is that true?

#4a. yes, it ended when EAD authorized work began
$4b. yes, it ended when travelling on AP

5. yes. My husband and I didn't do this. We waited a long time while acquiring documents from his country and reading up on what we needed. That could have been bad if he had needed to urgently travel out of the country. He would not have been allowed to re-enter on F-1. Any other potential problems?

6. Maintaining F-1 status may give you other options if the sponsoring spouse (USC) dies, the marriage is prematurely ended, or the application is otherwise denied. Other reasons?

Folinskyinla

Hi:

Matter of Hosseinpour from Board of Immigration Appeals is of interest. Please note that F-1's were admitted for a time certian back then.

http://www.usdoj.gov/eoir/vll/intdec/lib_vol15idx.html

SanBernardino

It says the guy was denied adjustment of status for the sole reason that he had been an F-1. Filing adjustment of status shows immigrant intent and it was concluded that he had therfore violated the non-immigrant intent specified in the terms of the F-1. Did the INS not approve any F-1s adjusting status back then? Or were they just selectively applying this interpretation of the law to him only? Also, I don't understand how these days so many F-1s are able to successfully adjust status if this is the if this ruling is of concern today.

Folinskyinla

Hi:

What case are you talking about? As far as I know, Hosseinpour is still good law. What are you saying that contradicts it?

SanBernardino

I am not *saying* any law contradicts it. I am *asking*:
1. If this is the law, why are so many F-1s allowed to successfully adjust status?
2. Were they just selectively applying this interpretation of the law to him only?

Folinskyinla

You have me very confused. I pointed out "Hosseinpour" to you and you responded as follows:

"It says the guy was denied adjustment of status for the sole reason that he had been an F-1. Filing adjustment of status shows immigrant intent and it was concluded that he had therfore violated the non-immigrant intent specified in the terms of the F-1. Did the INS not approve any F-1s adjusting status back then? Or were they just selectively applying this interpretation of the law to him only? Also, I don't understand how these days so many F-1s are able to successfully adjust status if this is the if this ruling is of concern today"

What is the "it" you are referrring to? I have no idea what the source of your statement is. All I know is that it is directly contrary to Hosseinpour.

In order to continue this discussion, I would ask that you,

First, read Hosseinpour; and
Second, please provide the source or basis of your statement.

SanBernardino

Folinsky,
I DID read "Hosseinpour". "It" was referring to the "Hosseinpour" case you linked. I guess you are saying I didn't understand it.

Specifically the text says:
"Evidence introducted at the hearing indicates that the respondent has been enrolled in school frull time since his arrival in 1970... The Service apparently based the out of status charge solely on the fact that the respondent applied for adjustment of status."

Folinskyinla

Hi:

Read the very NEXT sentence: "We conclude that the Service has fialed to establish by clear, convincing and unequivocal evidence that the respoondent is deportable ... for failure to comply with the conditions of his nonimmigrant status.

Read the ENTIRE page [#192] on which your quoted language appears. The Board of Immigration Appeals withdrew from a prior precendent decision [Matter of Gallares] explaining why and stating:

"We now hold that the filing of an application for adjustment of status is not necessarily inconsistent withe maintenance of lawful nonimmigrant status."

THEN they state the language you cite on what the INS had done and the REJECTED it.

SanBernardino

I did see that, but I didn't understand who was presenting the arguments. I guess I thought "we" was the respondent's defense and that their arguments had been rejected.

Thank you for explaining Folinsky. I reread it and I see how I should have interpreted it now. Thre is one thing that still confuses me and also led me to misread it:

In the end, he was ordered to leave because of an overstay, right? Why? It seems like he was in status when he applied for adjustment, and they are saying he is eligible for adjustment, so why would he have an overstay?

Folinskyinla

Hi:

Cast of players:

Hosseinpour -- the respondent, the alien

Service -- the INS, who would not be the DHS.

Board of Immigration Appeals -- the "we" who wrote the decision. BIA opinons are binding on DHS.

On your last question -- when Hosseinpour came down, F-1 students were admitted for a time certain, not "Duration of Status". Re-read the facts in light of that little detail. Mr. H was here in F-1 status. He married and applied for adjustment of status. He continued to go to school and didn't work. The marriage broke up and the adjustment application was gone.

So the ruling was that he did not "violate" his status by filing for adjustment, but he did overstay his non-immigrant stay.

SanBernardino

So let me try to set straight my errors.
Going back to my questions in the original post, the lessons from this case are:
1. It is possilbe to maintain F-1 status after marrying a US citizen.
2. Filing for adjustment of status does not violate the terms of the F-1. F-1s can adjust status. While adusting status, F-1s can maintain status, by adhering to the terms of the F-1 status until the adjustment is granted.
3. Divorcing during a marriage-based adjustment may cause the adjustment to be denied.
6. If the adjustment is not granted, it is possible to continue to stay under F-1 status as long as the F-1 status was maintained.

Thanks for your patient explanation Folinsky. I hope I've learned how to read these cases now that I understand how they are structured. Sorry for the trouble.

I missed the part about his marriage breaking up too! I suppose that is the reason the adjusment was denied. The duration of his F-1 expired during the adjusment and he had not filed to extend it. Therefore, he was deemed out of status. If his F-1 status were current, he could have reverted to (continued in) F-1 after the adjustment was denied. He was out of status, so he was ordered to depart.

Folinsky points out that today most students receive I-94s valid for duration of status rather than a specific date; therefore, the automatic expiration of F-1 status is less of concern today. However, I suppose that even today this could be a concern, if, for example, the I-20 expires.

For example, when my husband was a PhD student, we did everything we could to maintain his F-1 status. His original I-20 was only valid for 4 or 5 years, but his PhD took slightly over 5 years. During the last year, we had to renew his I-20, in order to maintain his status. At first, the International Student Services office was unsure if they could renew it, upon knowing he was married to a citizen, but in the end, they documented the situation (marriage, status, etc.) and were able to renew it; that is, they issued a new I-20. Back then, we didn't even know specifically what the point was of maintaining status, but it seemed the most cautious thing to do.

Now it no longer matters. Upon graduating, he could no longer maintain F-1 status. We did consider applying for OPT to continue the F-1 status, but since he had filed for AOS we doubted they would grant the OPT. Much chance they would grant OPT to an adjustment applicant?

Anyway, we had already been married over 2 years when he graduated. I recently read in another thread that since we have been married for two years, it is possible for them to grant the adjustment even if I died or we divorced. (God forbid.)

Comments on any of this?

sphyrapicus

I guess I'm curious as to why you two were so reluctant to adjust his status? In my case, it was a no-brainer. Why would I want to be on a non-immigrant student visa when I was eligible for a permanent green card? I had to pay higher tuition since I was considered out-of-state since I was on an F-1 (as a permanent resident I qualified for in-state tuition). I don't see any advantages to maintaining the F-1 status (especially since the status is only short-term anyways)? I couldn't work, I couldn't leave the country to visit family (or god forbid a funeral) or attend conferences (well - I could but then I wouldn't have been able to re-enter on the F-1), and the F-1 is only short term so I'd eventually have to adjust status eventually or leave the country. Please forgive my ignorance but I just don't see the advantage of mainting F-1 status if one is married to a USC?

Folinskyinla

Although the actual provisions pre-dates this, I think of the above provision as the "Daniel Pearl" provision. It is not all that uncommon for expatriate citizens to live and work overseas. They often marry and have children -- quite often those children have derivative US citizenship. So the law provides that a widow[er] in such situation can file an I-130 on their own behalf if they had been married for more than two years prior to the death of the US citizen and the I-130 is filed within two years of the death.

It is one of the "nice" provisions in the INA.

SanBernardino

Yes, the law is thoughtful and fair in some cases. I was really naive when we married and just thought everything would naturally be like that. It wasn't until months after we married that we even realized what a bad situation we were in if he needed to go abroad and re-enter country. Sometimes I still feel it a bit unfair to have so many things to think about just to stay together in the U.S., but I also see they have good reasons for being cautious. It is a bit amazing how many little things in this process can trip up the most law abiding of people though; the road to immigration hell is paved with good intentions. We were lucky to catch on sooner rather than later.

Sphyrapicus, we had LOTS of reasons to wait, all of them NAIVE in retrospect. Our sole motivation for marrying when we did so that we could live together and spend our lives as husband and wife. Immigration concerns were nowhere on our radar. He was legal. Our marraige was legal. What was there to worry about? Obviusly, we were surprised when we started looking into his legal status and our options. We understood next to nothing about immigration, status, or the difference between being a resident and a non-immgirant. We *assumed* that being married could only improve his situation and options.

Little did we know about the hoops we needed to jump through in order for that to be true or how untrue it could be if we failed to do so. As you said, the main danger of waiting so long was he would likely have been denied re-entry on an F-1 visa, making travel abroad impossible. For that reason, it was foolish of us not to file sooner.

But we didn't know that at the time we married and we were not even sure we would stay in the US after he graduated. It was possible that he would apply to jobs out of the United States and wouldn't need U.S. residency. Now we see that our best opportunities are here. Partially for that reason, but mostly so we would not have to worry about his status here, we decided to file for permanent residency.

After we made the decision to file, it took time to get his birth records. Also, there was a problem with his name, which we had to fix on his passport and on our marriage certificate. After getting the passport fixed, we had to ammend the marriage certificate from the State of California. I just kept thinking -- it will come THIS month, but it took nearly a year. Rather than get errors with his name or requests for evidence, we just waited on these documents. Only hindsight is 20/20.

However, Sphyrapicus, I do think you may be missing the point about F-1 status though -- you can keep the F-1 status even while waiting for adjustment. If something goes wrong with/during the adjustment, it will be advantageous to have the F-1 status to fall back on. However, since most of the time nothing goes wrong with the adjustment, it may not be worth the financial costs or other hassles of maintaining F-1 status while adjusting. The risk-benefit analysis is yours to make for your case. In our case, I think it was best to maintain the F-1.

Tuition may be one reason to go out of F-1 status, but in our case it wasn't. He had grants for his tuition and an assistantship for living expenses. Anyway we were told that for the University of California, you need to be a resident for at least a year and the time during F-1 doesn't count, so his tution would only have decreased after a year. By then it was irrellevant since once you advance to PhD candidacy, the tuition rate goes down anyway (not sure how much, but I think to the resident level). So for us, the financial considerations did not outweigh safety of the F-1 status.

Anyway, I hope this thread is helpful for someone to avoid the pitfalls of adjusting status and make the best choices for themselves.