There was an error in my wife's green card application that many people (including myself and our lawyer) should have caught. Our lawyer promised us that during the final interview this could be trivially corrected on the spot. Despite many smiles and laughs during the interview it's clear the interviewer didn't approve of how my current wife and I met (it involved a divorce) and so he decided that he couldn't possibly correct the error during the interview, and that while we passed, we would need to wait nearly a year for the correction.
While this was frustrating the interviewer could have just as easily decided, at his discretion, that our marriage was not "real" (despite the fact that the reason for his objection was ample evidence that it was quite real), so it was a pain we had to suffer. I've spent enough time working with petty bureaucrats to know it's better to accept whatever means they try to prove their own power than to fight it.
The right way to fix this is to type out the questions you want to correct into a document (called an errata sheet) with the corrected answers and to hand that to the visa officer with your ID at the start of the interview. The reason you want to do this is you want a paper record that you volunteered this information. Anything verbal can be argued that you only revealed such information when confronted and that's a problem.
So I don't know what your issue was. Errors with a divorce could be as serious as you weren't free to marry because at the time you got married your divorce wasn't finalized and that invalidates your entire petition and there's no correcting that.
Another big one is USCIS not believing your divorce is real. this happens if you get divorced in certain countries (eg Ghana, Nigeria) where apparently fradulent divorce decrees are a real problem.
Like the interpretation of the situation seems to hinge on that, because if we didn’t know that it was usually fixed on the spot, then it could very well just be protocol to go through a correction process that takes awhile (for other dumb reasons but not because someone was wronging you personally).
When this happens, you're present without a visa, but it's not illegal. You're on a "stay authorized by the attorney general".
I'm not sure if that has changed, but the " authorized stay" thing is the defense to being present without a visa.
It does make a lot of paperwork more difficult, like getting a drivers license, when as you can't prove status.
If you get married as an F1 student, it's completely fine (and encouraged) to continue your studies under your F1 visa while your I130 and I485 are pending.
There are differences here if you're marrying a US citizen vs a green card holder. If you marry a green card holder, you must maintain your status until you adjust status with your I485. If you marry a US citizen, being out of status is forgiven.
If you discontinue your studies, USCIS (particularly under this administration) might try and argue you obtained your student visa fraudulently to deny your marriage petition. The best thing you can do is complete your studies and then, if applicable, obtain OPT to further maintain status.
Any marriage where the immigrant spouse is out of status will be treated with more scrutiny by USCIS.
There are two things that I'm not sure about:
– Is the distinction between studying (regardless of status), vs. being in status vs. having a visa? Because the three are different: you can enter as a student and study, and have your F-1 expire, and still maintain status per SEVIS.
– IANAL, but you get an EAD upon petitioning for an AOS – does that prevent you from applying for OPT?
For example, if you get sponsored by an employer for a green card and you marry a US citizen, you might ask which green card should you pursue? The answer is both. This is fine and encouraged.
This also comes up with people who apply for asylum. This can take years to adjudicate. What if they get married to a US citizen in the meantime? Generally, the advice is to maintain your asylum application AND apply for your marriage-based green card.
This doesn't just apply to green cards either. If you work on an H1B, it's completely fine to apply for a green card (through employment and/or marriage) at the same time. Some will point out that the H1B is a so-called dual intent visa that doesn't preclude immigrant intent but that's not really what that means because you can adjust status to a green card on a non-immigrant intent visa too.
"Immigrant intent" here really means if a consulate will issue you the visa overseas and if CBP will let you into the country if you've shown immigrant intent (which usually means filing an I130 or similar). Once someone files an I130 for you, you'll not be granted a student or visitor's visa from outside the US and if you have either, you might be denied entry at the border. Because those aren't dual intent visas.
A red flag for USCIS for visa fraud is applying for an F1 visa, coming to the US, stopping studying and getting married. To them it looks like you committed immigration fraud just to come to the US.
That's why I say you should continue your studies (and also not get married in the first few months upon entering the US on a student visa).
So there's really no studying out of status per se. If you continue your studies, your F1 is still valid. When you get your EAD or green card, you can study with that and terminate your F1 status.
If you fall out of status on an F1 for a certain period of time it might be difficult or even impossible to resume student status to study at the same or another institution. I'm honestly not familiar with the rules around this.
But you're just not really going to be studying in the US without any status.
You both:
1. Can't leave the country because of immigration laws.
2. Have to leave the country because of immigration laws.
It's still possible to through an adjustment of status but the hoops around not leaving the country are much more awkward.
Because permanent immigration is not the intent of a TN visa, it's a loophole.
There is a law saying that if you leave the country you abandon your green card application.
Combined with losing his visa and having to leave the country, this just means that the law says if you lose your visa, you lose your green card application too.
But you can always legally leave the country forever.
1. You do what's called consular processing out of the country;
2. You adjust status in the country; and
3. A fiance visa (K1). I'm going to ignore this.
For (1), your US citizen or green card holder spouse will wil an I130 visa petition to show that you're legally married. USCIS will confirm that you are legally married (including both of you being free to marry) and then it gets sent to NVC (National Visa Center) and you get documentarily qualified. This whole thing can take 6-9 months. It can take substantially longer if there are certain risk factors as far as USCIS is concerned for fraud. Large age gap, certain countries of origins (particularly the Phillipines), etc.
Once you are documentarily qualified, the foreign spouse will apply for an interview at a foreign consulate. This used to be anywhere but as per a recent rule change by this administration, now has to be the country of origin, meaning if you're Canadian you have to do it in Canada not the UK or Italy or whatever.
This may not seem like a big deal but the wait in some countries can be years long, just for the interview.
While this is all pending, you likely will be unable to visit the US because you've shown immigreant intent so you'll be denied ESTA or a visitor's visa most likely. Or, if you have a visitor's visa, you may be denied entry at the border.
For a standard case, this whole thing will take about 2 years. There are a whole bunch of steps like biometrics, police checks, etc and there are cases where you may need waivers of inadmissibility (eg if you have a 3 year bar or have a felony conviction). Those waivers can add years.
For (2), the process differs if you're marrying a green card holder or a US citizen.
If you have a marry a green card holder, they file an I130 petition and you'll get a priority date. There is a quota for these green cards. When your priority date becomes current, you the file an I485 for your spouse. Your immigrant spouse must've remained in status for this entire time up to and including when the I485 is approved. Because of the quota, this can take years and people will often become US citizens before the process is complete.
There is no quota for immediate relatives of US citizens (including spouses, parents and children under 18). If you marry a US citizen, you generally file the I130 and I485 concurrently. You can optionally also apply for advance parole, which will allow you to travel (more on that below), and an EAD, which will allow you to work until you get your green card. At this time people often get their green cards before their EADs so many don't even apply for them currently.
So, traveling. If you have a pending I485 and you leave the US you have in the eyes of USCIS abandoned that I485. You are now out of the country and most likely will be barred from re-entering the US, forcing you to consular process. You might be able to return if you have an immigrant intent visa like an H1B but it's generally recommended not to travel at all while you have a pending I485 application if you can possibly avoid it.
If you marry a US citizen, being out of status and working without authorization are both forgiven. This isn't the case for a marriage to a green card holder I believe. But if you marry a green card holder and while your application is pending they become a US citizen (as often happens), then the US citizen rules apply anyway.
So, if you are on a TN visa and have a pending I130 and I485, you have two choices:
1. You can leave the country and go back to Canada. This will abandon your I485 (but not the I130) and will force you to consular process. You'll be gone for 1-2 years most likely and likely unable to visit. This is the safest option however but obviously most people don't want to be separate from their spouse for so long, understanbly; or
2. You accept that you will be out of status and you stay. Any overstay of less than 6 months generally isn't an issue although working unauthorized is if, for some reason, your marriage petition is withdrawn or denied. If you overstay 6-12 months, you have an automatic 3 year bar on returning should you leave. If you overstay more than 1 year, it's a 10 year bar.
In the current administration, I think there are zero marriage petitions that should be done yourself. You should have a lawyer. Any decent lawyer who will be able to lay out the options as I've described.
Assuming your case is fairly straightforward and you've already filed the I130 and I485, I'd generally suggest people just accept the overstay and adjust in the US although I can certainly understand the "cleaner" (but longer) approach of choosing consular processing instead, particularly if you are still in status and don't have any automatic bar due to a 6+ month overstay.
What do immigration attorneys recommend in this scenario?
I don’t get the catch-22, time’s up & you leave
Happens to H1Bs all the time
The whole thing just further exemplifies the "cruelty is the point" ideal.
For those countries (especially India) the wait can be more than a decade.
Moving to a points based immigration system without country of birth consideration may one day happen.
Depending on what contributes to points it would encourage better English language abilities and skill sets from immigrants (eg winners being China and India, losers being Mexico)
Anything, honestly, to end the need for informal lawyering that even immigrants with straightforward situations still have to do.
(In more ordinary circumstances it's merely arbitrary and unjust.)
I agree it was arbitrary and unjust. I deserved to be a citizen.
Many laws are easy to break.