Chengen Geo

Dear all,

Can someone shed some light on our situation? I am a green card holder
and plan to start citizenship application in about 4 to 5 months, and
hopefully become a citizen after another 9 month (that's the time I
have heard). My wife and baby are not green card holders and they are
in the country on tourist (B1/B2) visas. We want to find out if there
is a way for them to stay in the country legally until I become a
citizen and file application for green card for them. I can think of 2
approaches but not sure if they are indeed possible.
The first is for my wife to attend school and change to student (F1)
visa. The question is whether that is allowed and what kind of school
is qualified. Can English language program at community college count?
And what about the baby? Will he get F4 visa?
The second possibility is for me to apply green card for them now
based on my green card. Can that allow them to stay in the country
legally until I get citizenship and refile the application base on
that?
Any answer to these questions and other suggestions will be greatly
appreciated. Thank you all.

Best regards,
Jesse

Noorah101

I don't know about your first suggestion (student visa), but I know that simply filing for their GC based on your PR status does *not* give them permission to remain in the USA after the B visa expires.

Rene

Jozef

<[email protected]> wrote in message
news:[email protected] oups.com...
>
> Can someone shed some light on our situation? I am a green card holder
> and plan to start citizenship application in about 4 to 5 months, and
> hopefully become a citizen after another 9 month (that's the time I
> have heard). My wife and baby are not green card holders and they are
> in the country on tourist (B1/B2) visas.

Interesting situation. How long have they been in the US? When did you guys
get married? When does their I-94 expire? Don't mean to pry, but this info
will help us help you.

> We want to find out if there
> is a way for them to stay in the country legally until I become a
> citizen and file application for green card for them. I can think of 2
> approaches but not sure if they are indeed possible.
> The first is for my wife to attend school and change to student (F1)
> visa.

An F-1 is a non-immigrant visa. Your wife will have a hard time changing
status to F-1 considering her husband is a PR.

> The question is whether that is allowed and what kind of school
> is qualified. Can English language program at community college count?

Yes.

> And what about the baby? Will he get F4 visa?

Your wife and baby will apply simultaneously. So if your wife manages to
change status to F-1 (which is unlikely), your baby will be in F-2

> The second possibility is for me to apply green card for them now
> based on my green card. Can that allow them to stay in the country
> legally until I get citizenship and refile the application base on
> that?

If you got married after becoming a PR, no. There's several years of backlog
in that visa category.


Jozef

scrubbedexpat099

Discuss the issue with the International Students Dept of the College.

A F1 is interviewed at the home country Consulate and requires amongst other things non immigrant intent.

Chengen Geo

On Jun 7, 1:29 pm, "Jozef" <[email protected]> wrote:
> <[email protected]> wrote in message
>
> news:[email protected] oups.com...
>
>
>
> > Can someone shed some light on our situation? I am a green card holder
> > and plan to start citizenship application in about 4 to 5 months, and
> > hopefully become a citizen after another 9 month (that's the time I
> > have heard). My wife and baby are not green card holders and they are
> > in the country on tourist (B1/B2) visas.
>
> Interesting situation. How long have they been in the US? When did you guys
> get married? When does their I-94 expire? Don't mean to pry, but this info
> will help us help you.
>
> > We want to find out if there
> > is a way for them to stay in the country legally until I become a
> > citizen and file application for green card for them. I can think of 2
> > approaches but not sure if they are indeed possible.
> > The first is for my wife to attend school and change to student (F1)
> > visa.
>
> An F-1 is a non-immigrant visa. Your wife will have a hard time changing
> status to F-1 considering her husband is a PR.
>
> > The question is whether that is allowed and what kind of school
> > is qualified. Can English language program at community college count?
>
> Yes.
>
> > And what about the baby? Will he get F4 visa?
>
> Your wife and baby will apply simultaneously. So if your wife manages to
> change status to F-1 (which is unlikely), your baby will be in F-2
>
> > The second possibility is for me to apply green card for them now
> > based on my green card. Can that allow them to stay in the country
> > legally until I get citizenship and refile the application base on
> > that?
>
> If you got married after becoming a PR, no. There's several years of backlog
> in that visa category.
>
> Jozef

Jozef,

Thanks for your answers. To give more information, we got married a
couple years ago and they just came to US 1 month ago and I-94 doesn't
expire for another 5 months. They got B1/B2 visa considering I am a
PR, does that give us some hope?
If we pursue the student option (as this seems to be the only
option?), do they need to leave US to change status? If yes, do they
need to go to home country or Mexico/Canada is OK? Thank you.

Regards,
Jesse

scrubbedexpat099

They can stay undocumented, quite popular.

But legally they would need to leave, Consulate interview would be in their home country or country of residence.

Jozef

<[email protected]> wrote in message
news:[email protected] ups.com...
>>
>> > The second possibility is for me to apply green card for them now
>> > based on my green card. Can that allow them to stay in the country
>> > legally until I get citizenship and refile the application base on
>> > that?
>>
>> If you got married after becoming a PR, no. There's several years of
>> backlog
>> in that visa category.
>>
> To give more information, we got married a
> couple years ago and they just came to US 1 month ago and I-94 doesn't
> expire for another 5 months. They got B1/B2 visa considering I am a
> PR, does that give us some hope?

To be honest, they shouldn't have gotten a B1/B2 visa in the first place.
Immigration officials are supposed to issue B-visas only when they're
confident the individual will return to his/her home country, which is
unlikely when the spouse is a PR, as your case illustrates. Either your
spouse misrepresented her case, or the official was asleep at the wheel.

Incidentally, the same goes for the immigration official at the POE who let
them into the country!

There's thousands of PRs out there who have petioned for their spouse back
home and who have to wait many years for a visa to become available and
what's worse, are separated during that time.

> If we pursue the student option (as this seems to be the only
> option?), do they need to leave US to change status? If yes, do they
> need to go to home country or Mexico/Canada is OK?

No. If they leave the US, they won't be able to return until you have
successfully petitioned for them and they received an immigrant visa.

Here's what I suggest you do.

1. Apply for citizenship as soon as you can. You do know you can apply 90
days before reaching 5 years as a PR?

1. Talk to the Designated Student Official of the college where your spouse
would like to take classes. The DSO is the individual who deals with all
things immigration at that particular college. They're usually very
experienced at getting their students into F-1 status.

2. Have him file for a change of status to F-1 just before your spouse's
I-94 expires. This buys her more time. In addition, if you change from a
Tourist to a Student visa right after arriving in the US, there's a higher
chance your application will be denied because it is evidence that you
misrepresented your purpose for coming to the US and that you should leave
the country and apply for a student visa in the normal manner.

3. If the change of status application is denied (which is likely), and you
haven't acquired citizenship yet by that time and petitioned for your wife,
she will be out of status and is supposed to leave the US asap. However, as
Boiler indicated, it's quite common for people in your wife's case to just
'sit it out' and wait until you're a citizen. Spouses of US citizens always
get their Green Card eventually, often without having to leave the US.

I would also suggest you talk to an immigration attorney. I doubt if he'll
be able to tell you anything new but in case your case goes haywire you want
to have a physical person you can yell at. Not that it will do you much
good, and you'll be out of $$ too, but this is one case where I would not
solely rely on some post in a newsgroup. You can find one here: www.aila.org
.


Jozef

Chengen Geo

Jozef,

Thanks once again for the valuable opinion and information.
My wife came to the US before on B1/B2 visa (while I am a PR) and left
on time. I think that is what give us credibility with the immigration
officer. This time we also planned for the worst, which is she will
leave within 6 month. But the baby suffers quite a lot on the long
trip and we start thinking how to get them stay longer legally. I
didn't think B1/B2 can change to any other visa, but heard from people
otherwise. My wife needs to improve her English anyway, so this seems
to be a good way to try.
Just one more question for you if you will. If we have the DSO file
for change of status for my wife before I-94 expires, but it is denied
after I-94 expires, is my wife (and the baby) out of status even if
they leave US quickly? Will that cause trouble later when I file for
PR for them base on my citizenship?

Regards,
Jesse

Jozef

<[email protected]> wrote in message
news:[email protected] ups.com...
>
> My wife came to the US before on B1/B2 visa (while I am a PR) and left
> on time. I think that is what give us credibility with the immigration
> officer.

That indeed explains *some* of it!

> This time we also planned for the worst, which is she will
> leave within 6 month. But the baby suffers quite a lot on the long
> trip and we start thinking how to get them stay longer legally. I
> didn't think B1/B2 can change to any other visa, but heard from people
> otherwise.

Yes. A B1/B2 visa holder can change to any other status in the US. Of
course, whether the C/S will be approved is another story.

> My wife needs to improve her English anyway, so this seems
> to be a good way to try.
> Just one more question for you if you will. If we have the DSO file
> for change of status for my wife before I-94 expires, but it is denied
> after I-94 expires, is my wife (and the baby) out of status even if
> they leave US quickly?

She would be out of status from the day the denial is issued (not during the
time the C/S was pending) and supposed to leave the US "within a reasonable
timeframe". She would also begin to accrue illegal presence time that counts
towards the 3/10 years bars. If she accrues 180 days of IP time, she would
be barred from re-entry for 3 years when leaving the US.

> Will that cause trouble later when I file for
> PR for them base on my citizenship?

If she left "within a reasonable timeframe", not at all.


Jozef

Chengen Geo

Hello, Jozef and others,

Since your helpful information and advices, I have located an attorney
through aila.org and asked many questions in a consultation session.
There are some important points/discrepancies I would like to check
with you again, because I think many of you on this board are no less
knowledgeable than an attorney.

1. Changing status to F-1. The attorney believes there is very little
change the B2 to F1 change will be denied, provided my wife receives
I-20 from accredited school, even if I hold green card. So the
question is, are many of you aware of similar cases that were denied?

2. The attorney also indicated many people simply overstay their I-94
and have no problem getting green card later when their spouses become
citizen. However, she also pointed out that if the B2 to F1 change is
indeed denied, then going out of status may not be an option anymore.
According to her, overstaying the I-94 is not the same as refusing to
leave the country after receiving the denial notice, which often
requires the applicant to leave within short amount of time. Is that
true according to your knowledge?

3. The attorney thinks there is only a moderate risk of being denied
entry if my wife leaves the US on time and try to come back a couple
month later on the same B2 visa. She has multiple entry visa good
until next March. I thought that is almost impossible. What do you
think?

So I see our options as below,

1. Apply to change to F-1. This is the best option if it succeeds. In
case it fails, we have to be separated for quite long time.

2. Leave the US on time and try to come back after a few months. It
would be good if she (and the baby) can come back. But I feel there is
a huge risk for her to be denied entry.

3. Overstay her I-94. This is an option we are very uncomfortable with
and we fear unknown consequence later.

Could someone please give me some further information/advices? Also in
case we have to separate, we are looking at K3 visa as a way to
shorten the separation. Does anyone know how long the K3 normally
takes?

Thank you very much for your help.

Regards,
Jesse

Noorah101

There is a 4th option: Just have her and the baby leave when they are supposed to, and when you become a USC you can file an immigrant visa for them to return to the USA permanently.

This is what you have in mind when you say K-3, but the Immigrant Visa route has sped up so much that the K-3 is no longer needed. You would file an I-130 for them, and the result would be an Immigrant Visa, instead of a K-3 visa. The Immigrant Visa is a much better visa overall anyway, because they enter the USA as permanent residents without going through additional change of status paperwork (expensive paperwork!) as with the K-3.

Best Wishes,
Rene

Noorah101

The Immigrant Visa process takes anywhere from 9 to 12 months or so to process, every case is different...yours could be shorter, could be longer.

Rene

meauxna

You know that your Option #2 is illegal, right?
She may not enter the US with a non-immigrant visitor's visa with the intent to Adjust Status/immigrate on that visit.