Adjustment Of Status

[Tomas]

My wife(US citizen) and I have been married for about 6 months now. I came to the US on an F-1 visa in 2006. I met my wife at my school, we fell in love and made a decision to get married in Jan 2010.

I am currently on my EAD and my wife is still in school and has a year left before she graduates. We haven't filed for AOS yet due to the fees being really high and I have not been able to secure a job as of yet. We both want to live outside the US for a while and travel. My question is if I leave the US now and go back home and work for some time while she finishes school can we apply for AOS at the local embassy once she joins me in my home country?  

What are the procedures for applying for AOS at an embassy? Can I apply for AOS while she's still in school in the US or do I have to wait for her to join me back home. Sincerely,

Jay

ANSWER: Hi,

I suppose that you have EAD(employment authorization document) based on OPT or otherwise as result of F1 student status, and not because you have already been sponsored by your wife.

Marriage to a U.S. citizen allows all sponsorship paperwork such as petition for alien relative(Form I-130), adjustment of status application(I-485), etc. to be filed concurrently with the USCIS. You will typically receive EAD and AP(advance parole) document to allow you to work and travel freely within 3 months of filing, and the marriage interview at which you will receive resident status(green card) will occur a few months after issuance of EAD and AP.

If for financial reasons only I-130 is filed for you by your wife, you can file I-485 and EAD/AP applications later if you continue to remain in the U.S. If you depart the U.S. after I-130 filing only, you will apply at a U.S. Consulate in your home country for immigrant visa(green card) once I-130 is approved by the USCIS, with instructions provided for consular processing by the National Visa Center(NVC) automatically sent to you. Your wife is not required to be present in your home country for you to obtain immigrant visa.

You can contact our law firm at 212-268-3580 during business hours, or email [email protected] for any additional guidance.

---------- FOLLOW-UP ----------

Ajay,

Thankyou for your response regarding my question last month. It gave me some insight into my situation. I'm following my situation with another question.

I'll just provide some more details:

I am on my OPT as a result of my F-1 status. It's been 7 months since I got married, but we have not been able to file for any paperwork related to Adjustment of Status(due to tight monetary reasons).

My OPT expires in December of this year. I have a very good job offer back home immediately. If I leave just on my OPT without having filed a single paper for AOS, then what is the process if my wife is in the US and I am back home.

I was told my US marriage is void and it does not count towards marriage time, if I leave the US. Is this true? My wife is still in school for another year. I want to leave for home immediately, work for a year and then think about how to come back to the US. I really dont want to leave her, but life has very tough circumstances sometimes when you are on your own.

So I guess my basic questions are:

1) If I leave the US now, does my marriage time not count while i'm back home?

2) Normally a K-1 Visa is issued for people outside of the US to come here and get married. Since, I am already married in the US, what would she have to do to start the paperwork while I am back home.

Please describe a situation where I-I30 is filed when I'm outside the US and not in the US.

Sincerely,

Jerob Jordash

[wahchintonka48]

Hi,

Your marriage remains legal and valid even if you reside in separate countries.

K1 visa category is not applicable as you are already married. Your wife can file I-130 petition for you anytime, whether you are currently in the U.S. at time of filing. The advantage of being in the U.S. is that I-485 and other applications can be filed concurrently.