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My Spouse is currently in the US on the OPT extended F-1…

My Spouse is currently...

My Spouse is currently in the US on the OPT extended F-1 visa. It expires on the 7th of July. She will be leaving for a month to visit family.

Lawyer's Assistant: What steps has your spouse taken? Has she filed any paperwork with the U.S. government?

And we are wondering if it is best to file the I-130 while she is out of the country or while she is here in the US

Lawyer's Assistant: Has your spouse talked to a lawyer about the F-1 visa?

No she has not, her F-1 is still valid, and she is accepted into a grad school program so she could renew it and re-enter if she wants as well

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I just want to know if it is best for her to file the I-130 and other sponsorship documents while she is in the US or outside the US. but other than that, that's it.

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Answered in 4 minutes by:
3/24/2018
Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 29,862
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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Hello my name is ***** ***** I am delighted to answer your questions. I am reviewing it and will post your answer momentarily.

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Customer reply replied 3 months ago
Ok, great thanks!

Welcome to JustAnswer! I have 34 years experience as an immigration attorney and I am here to help resolve your immigration issue. Tackling these issues can sometimes get confusing. Should you need to chat on the phone or document review, I am able to do that for an additional cost. Let me know at any time during our question and answer session if you are interested.

What is the date your spouse is going to return to the US? The visa expires 7/7/18.

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Customer reply replied 3 months ago
What is the date your souse is going to return to the US? The visa expires 7/7/18~~~~Yes this is correct, she can return before that date if need be!

There can be an issue regarding her immigrant intent if the I-130 is filed before she returns to the US.

When her visa is scanned at the POE it will show an I-130 has been filed. That is a presumption she is not entering with the intent to return to home country at the completion of her program of study (OPT).

Further, the DS-160 visa application asks for marital status. So if she returns after 7/7/18 necessitating her obtaining a new visa stamp the consular officer will see she is married to either a permanent resident or US citizen and the presumption is she intends to immigrate to live in the US with the spouse.

Her best course of action is to return to the US before her visa expires and before any I-130 is filed.

I hope that helps! Please let me know if you have any other questions. I appreciate this opportunity to help you. I do not receive a salary here at JustAnswer, and am only compensated for my time after receiving a rating. If you are very satisfied with my answer please take a moment to click on the 5 stars at the top of the page. The question thread remains open and you can ask follow-up questions.

Judith

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Customer reply replied 3 months ago
Thanks Judith! This helps immensely!

You are most welcome and thank you in advance for a 5 star rating!

I would also recommend that you do not file the I-130 for at least 90 days following her re-entry into the US as an F1. Why? USCIS could raise the presumption she had intent to file and immigrate at the time she professed to be entering to complete OPT. Don't give them any opening to rule against her.

Judith

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Customer reply replied 3 months ago
Well the F-1/OPT will be expiring and she didn't get a job to sponsor her so how long could she stay after it expires?Would it be best to submit the I-130 and just have her re-enter after he OPT expires?

Would it be best to submit the I-130 and just have her re-enter after he OPT expires?

The above confuses me.

So her I-20 expires 7/7/18, as well?

Are you a US citizen?

Judith

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Customer reply replied 3 months ago
Would it best to file before she leaves (she's currently in the US now) she was just going home to visit before staying here for a longer period of time.Yes, I am a US citizen.She graduated college in 2017, and the received OPT for one year. That OPT visa allowed her to stay in the US until 7/7/18. She was going to go home before her OPT expires and then come back and start the I-130 process now that she is my spouse.I hope this clears things up.

If she were my client I would urge her to delay travel and to proceed with filing the I-130/485/765/131 concurrently.

She will receive her combo EAD and Advance Parole card in approximately 90-120 days. She can then travel to visit family and return to work here and wait for your personal interview.

She is risking being admitted with such a short time left on OPT and if she is intimidated or made nervous by the inspector at the POE she would be sent back to secondary inspection where they would grill her about marital status and then raise the presumption she is really an intending immigrant.

This trip is not a matter of extraordinary circumstances or hardship. Delay and play it safe. File, wait for EAD/AP combo card and then visit family.

If you are very satisfied with my answer please take a moment to click on the 5 stars at the top of the page. The question thread remains open and you can ask follow-up questions.

Judith

Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 29,862
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
Verified
Judith Ludwic and 87 other Immigration Law Specialists are ready to help you
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Customer reply replied 3 months ago
Ok thanks! This clears things up.

Most welcome and all the best.

Judith

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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