rakhmetov567

My wife, who has been in the US on an F1 since 2002, and I were married in June 2006 in the US (I'm a USCitizen). Before we filed the I-130 or the I-485 but after we were married, she returned home to Europe on her F1 visa for two months in the summer of 2006 and returned with no problems with INS. The following year, I filed her I-130 (in winter 2007, we screwed up and did not file concurrently with form I-485) and received approval notice for the I-130 later that year. She then traveled home to Europe again in the summer of 2007 and was admitted for the fall semester again with no problems. The POE officials never asked whether she was married (she didn't take off her rings, although she wears lots of them, she was prepared to say she was married), so perhaps we were lucky in that regard. We sent the I-485 and all corresponding forms into Chicago USCIS last week and now I read that we may have been mistaken all along. We certainly did not mean to break the rules in any way and she would not have traveled had we known this is a potential problem (someone gave us advice to the contrary).

Her traveling home to Europe these two summers and returning may mean she came here on a non-immigrant visa with the intent of becoming a permanent resident. Are we in trouble? We had thought that she couldn't travel only after we filed for AOS, but now I have read that her returns in 2006 and 2007 with the intent to apply for the green card may represent immigration fraud. Of course, she does not intend to leave the country now until after she has received Advance Parole, which we applied for (and assuming we get, hoping we're not in over our heads by now). On her I-94, copies of which we submitted with the I-485 and accompanying forms, it states as clear as day that she returned to the country in August 2007.

Elsewhere in this forum, someone posted an answer that comes close to answering the question, but not quite:

"I'd say that's tricky at best (traveling to Poland to get married to a USC, returning, and then filing for I-130, I-485, etc.). If she already had an F-1 visa, then she could be admitted into the USA with it, but filing for Adjustment of Status could later bring up the issue of immigration fraud, similar to the issue of tourists adjusting status. Most likely, they would get away with it (USCIS tends to be generous in these cases)."

So can anyone please shed some light on this issue? I've performed dozens of Google searches with a multitude of search queries and have not found anything saying we should not have done this. Does me being a US citizen and her already being in the country (and past INS) without the intent of leaving until this thing gets worked out mean that we're "likely" to "get away with it," or are we in danger of her being sent home and put through the State Department system or having some kind of proceedings against us?

Also, when would this issue likely become a problem? Immediately, producing an outright rejection? Or later, at the interview?

In our defense, we searched exhaustively on this issue two years ago and found nothing stating we have something to worry about. We even went to our university's OIS office and were told that her leaving after our marriage but before our application for AOS was not a problem. Was this bad advice?

Thank you,

Concerned

ian-mstm

Not any more. The I-130 has been approved and the I-485 has been filed. Relax.

Ian

Elvira

I agree. I cannot think of any reason why an F1 cannot adjust status based on marriage to a USC.


Happens all the time

rakhmetov567

Thank you both for the timely and reassuring replies. Just to be sure, we have merely put our I-485 in the mail recently(submitted it, so to speak, last Wednesday), so does that mean it has been "filed" as you say?

ian-mstm

Well, to be pedantic... it will be considered "properly filed" only once you receive a receipt notice for the I-485 (although there's really nothing more to do at this point)... that'll indicate that USCIS has accepted your application. It'll take a few weeks for the notice to arrive. Don't worry though... you're on track! Since approval of the I-485 can take many years, don't be in too much of a rush. Once your wife has AP, she can travel outside the US again... it usually takes 3 months or so for that to arrive. Good luck!

Ian

rakhmetov567

You all are wonderful and I can't thank you enough for your help.
While I can do very little to help you continue to help others, I am going to build a website detailing our experience as a guide to others. Along the way, I've discovered only two good sources of free information, and BritishExpats.com will come before the trick to get a human on the phone over at USCIS.

Elvira

A suggestion...:

There is very little point in trying to get a human on the phone over at USCIS. Those phone lines are manned by contract workers who know very little.

The USCIS 'Helpline' is generally - and more accurately - known as the misinformation line...

If you need to make inquiries about your wife's case at any time in the future, it is better to make an Infopass appointment and go in person to your local District Office.

alcoa

Sorry to break the news, but I do not think you are 100% safe yet. Although your I-130 has been approved and I-485 'filed', you and your spouse are yet to appear for the interview - I believe that's where the AOS officer, while reviewing your application and past travel dates, can catch/think that your spouse may have had immigrant intent when she used her F-1 visa to re-enter and possibly deny her application. Now I am not saying that this WILL happen, but there's a small chance that the visa types and dates of her past travel may not go unnoticed at the interview.

I am somewhat in the same boat as you (although my case is slightly better than yours in that the travel ocurred before the marriage). Read my scenario here:
http://britishexpats.com/forum/showthread.php?t=487780

I am sure that Folyinskyinla will comment on here as soon as he sees your thread. He'll tell you that this falls under the 'ten foot pole' scenario, and you can search this forum for similar threads.

I have been researching on this topic for the past few months now. I am yet to find a good immigration lawer who specializes in F-1 to AOS adjustments. I do suggest that you find and consult with one soon.

ian-mstm

With respect, I believe you are wrong. Regardless of how this played out, and from the information supplied by the OP, her intent was never to "get away with it"... and it is her *intent* that is at question here. She traveled on her valid F-1 and was never asked the question by the officer at the PoE. She was prepared, however, to answer the question *if* it had been asked. Besides, this all happened *before* the I-485 was even submitted... so there was never an attempt to circumvent the adjustment process.

Ian

Tracym

I wonder....

Granted, they intended no harm at all.

But when she re-entered, her *intent* was to immigrate presumably.

The old "ignorance of the law is no excuse....."?

Hopefully though, USCIS would see sense and not make a problem for them.

scrubbedexpat099

I agree, just a question of keeping your fingers crossed, personally I would not even consider AP, and I would want a Lawyer at the interview.

rakhmetov567

Is it helpful that she continues to study (early stages of the dissertation) and will continue to do so even after the I-485 issue comes to pass?

Yet another complicating factor is that we initially filed the I-485 and I-130 together, but we sent the I-485 to Chicago and I-130 to Vermont (my mistake, big mistake, I realize how dumb this was now), but the I-485 was sent back but the I-130 was approved. We reapplied for AOS after her return from Europe the second time in 2007. Does her returning in 2007 after this failed attempt at AOS imply that she had the immigrant intent upon return even though the main objective was to keep studying? Of course, we didn't try to hide anything and indicated clearly in the application that we had previously applied for AOS.

Her intent upon reentry (even after the I-130 had been approved) was still to study, although we recently decided to go again for permanent residency since we resolved to live here and make our careers here. We had been thinking seriously about working in Europe, even after the I-485 was sent back the first time, once we were done with our degrees. After all, I speak her language and a couple of others, and she speaks a few others. We opted against this after we got a better sense of the European job market (tight place to be in our fields) and decided to stay here, so we applied for AOS a second time.

When she reentered both times, she was prepared to say I am married to a US citizen but that her intent is to study on her F1 visa. She was told that leaving on an F1 and returning to apply for AOS is okay by the Office of International Studies. They also told her that it wouldn't be a problem if she got married here, traveled home for a month or two, returned and then applied. What complicates things for us is that, after her initial trip home in 2006, we filed the I-130, it was approved, then she went home again in 2007 and reentered on her F1 visa. But the consensus seems to be that everything is ok since the forms are filed, our marriage is legitimate (which we'll prove), we can attest that there was no fraud on the intent question when she returned (since she still studies), and that I (barely) make enough money to support her at the 125% level. Plus, her leaving and returning on the same type of valid visa with the intent to return to her studies each time, seems to imply that she returned with intent to remain at school.

So are we basically down to this: whether the interviewer wants to make a deal out of this? From what I gather, USCIS interviews seem to come down to the marriage, and status and intent questions are secondary. Is this a correct, though unreliable, assumption?

Has anyone heard of previous denial cases on this basis? I have yet to hear of one.

Also, what do the others make of the advice of having a lawyer present? We can't really afford one but if it could make the case one way or the other, then out comes the credit card. Wouldn't the immigration official conducting the interview wonder why we feel the need to have a lawyer there and then get suspicious?

Noorah101

Probably not, but even if it did, he would be right there to answer any questions of suspicion on the officer's part.

Rene

scrubbedexpat099

I have heard of cases where the person had applied to adjust and subsequently used the F1 to enter and was declined on that basis. No diferent from any other non immigrant visa. If you has statd your intent on entry they would not have let you in.

Lawyer is Insurance, you may not need it, it may not make any difference anyway

rakhmetov567

Just wanted to post the results of our interview here since anyone else searching on this subject might well want to know . We met with an experienced immigration lawyer (May group Pittsburgh, PA) who read over our files/forms and told us we don't need her assistance. She told us that we would certainly be asked about the issue of intent upon re-entry during the interview and that we need to be very careful about how we stated our situation (her advice: be very prepared for every question & contingency and the rationale she figured out we were trying to articulate was: the first time when her I-485 form was returned in early 2007 due to our errors demonstrates how little intent we had the first time and upon re-entry in 2007 she waited more than 30 days to apply for AOS, so her intent clearly was not to apply right away, we only decided to reapply later). While we don't know much about this firm because we didn't really work with them, their honesty and forthrightness about our not needing their services reflect well on their firm.
After all my worry and concern, we had our interview on February 26, 2008 in Pittsburgh, PA and the question never even came up!
Our interview lasted 25 minutes and only involved two real questions about our marriage: "Were you married in a church or courthouse?" (a church) and "Do you have pictures of the wedding."
Good luck to everyone going through this and to those who worry as much as me, my experience shows that worrying too much doesn't help. Relax, it will all go well.