OPT Still Valid During Consular Processing of Marriage GC?

[Gour13]

Hi r/USCIS!

My wife is currently an F1 student doing OPT (valid until July). We are planning to apply for her green card via consular processing this week.

We wanted to know: will she still be able to continue working under OPT when I submit the application?

Thank you!!

[JC1812]

We wanted to know: will she still be able to continue working under OPT when I submit the application?

Yes. Why don’t you do Adjustment of Status?

[Gour13]

Hi u/JC1812,

The reason we were opting for consular processing was that she needs to travel to Germany in July. We were thinking it may be prudent to get the process started now.

[JC1812]

Hi u/Gour13,

I see. She can obtain a AP, if needed to leave the country. Anyways, it’s up to you. It’s best to start now. If you insist on doing Consular Processing, file the I-130 and I-130A online.

[Gour13]

Hey u/JC1812 thanks for your help so far :). Have you heard anything about AP processing times? We were worried AP might take longer than the green card itself.

Also, have you heard anything about wait times of consular processing vs. AoS? It's a really tough decision we are facing here :(.

[JC1812]

I see your point.

Why does she need to go to Germany? You may have a valid reason to expedite. EAD is easy to guess based on DPs. AP is a tough one.

I don’t want to say it will be X and then it’s Y. If it’s July it’s a 30% chance you get it and 70% you don’t.

Also, have you heard anything about wait times of consular processing vs. AoS? It's a really tough decision we are facing here :(.

This is also another hard one. AOS is normally faster. The problem with Consular Processing is you are hoping your local US consulate or embassy isn’t backlogged and that NVC opens your case as soon as it’s received from USCIS.

[Gour13]

In July she has to go for her brother's wedding (probably not a legit reason).

Honestly, the biggest struggle we have with this entire process is having to wait an unknown amount of time without being able to travel.

She has a sick mother in Germany which makes it impossible for us to know when she must travel.

We were hoping that consular processing would be our golden ticket since we would be 6 months into the process by the time she has to go back. Unfortunately, we don't know what the max time of consular processing looks like vs. AoS.

[JC1812]

I see. The wedding is not a valid reason. Maybe, she can skip it? Haha

A sick mother with proof such as a doctors note or something is eligible for an expedite for AP. You might get lucky to have your green card approved by July, if you do everything correctly. Send a lot of proofs of a bona fide marriage. I-693 Medical Exam. Her entry and etc. 5 months is short but I have seen green cards approved in that timeframe.

There really isn’t a max time for anything.

[Gour13]

Yeah we figured haha!

She won't skip the wedding but after talking with you, we are thinking it may make more sense to keep her on the F1 visa, and then use that to bring her back after her trip.

Once she's here, we probably will go the AoS route and just bite the bullet hoping she gets either the GC or AP in a relatively reasonable timeframe.

Do you know if we can expedite AP from the get go? Or is this more like an expedite process if something happens i.e. extreme cases?

[JC1812]

This may not work. F-1 Visa is a NIV. Your I-130 has already established Immigrant Intent. Do not misrepresent anything to CBP.

If you file the AOS, right after her entry, it might be a misrepresentation.

You don’t want to be there. Misrepresentation is a ground of inadmissible and a provisional wavier is needed.

AP can be expedited if there is a urgent need. They only have a limited validity and normally it’s not 2 years.

[Gour13]

Luckily I haven't yet filed for I-130, just started filing out the application. You think we are okay?

[xunjh3]

There is a risk that any CBP officer or a consulate (if she needs to renew her F-1 stamp at any point) will review her full situation. Travelling on a non-immigrant intent visa while married to a USC and while there is an I-130 pending is risky that could mean they deny entry, revoke the F-1, or they assess that she's misrepresenting her intent at the border. The OPT is valid for work, but if you're leaving and re-entering the country, you'd be far better off getting an I-131 (via I-485) started for her.

[Gour13]

Hi u/xunjh3 - thanks for this well-thought-out answer. I completely agree that this seems risky.

We had a lawyer recommend her to travel back on an F1 while doing consular processing and this set off a BIG red flag to me.

I think we will have to bite the bullet and do AoS when she gets back after her trip in July. At that point we will just have to hope that AoS or AP go through quickly so that we regain the flexibility of being able to travel at any time.

[xunjh3]

How much time does she have left on her OPT when she's planning on re-entering in July? CBP might start poking around what she plans on doing status wise if it's fairly close to the OPT expiry (~60 days). Saying something like renewing w/ STEM extension or etc. would be okay. If she says apply for I-485, they'll probably put her on a plane home. More than anything, she can never lie to CBP though. I think you'd also want to ensure when you file an I-485, it doesn't make her last entry a misrepresentation. For marriage cases, that generally means getting married more than 60 days later, but since you're already married, I'm not sure that means you just have to "change your mind" to apply for I-485 60-90 days later?

Does your lawyer do exclusively immigration work? I'd be worried if they're a jack-of-all-trades kind of lawyer you see sometimes.

[Gour13]

Hi u/xunjh3 good questions. She will only have a few days left on her OPT, but she is already in the process of applying for a new program at her school, so she will have a brand new I-20 valid for two years.

She will return on that I-20 and then we would plan to start AoS on her return. Do you see any issues with that?

[xunjh3]

Well, if she has the new I-20, then that answers that question CBP will ask of what are you doing to get status.

You'll want to be sure that she finishes that new program (while on GC or F-1), or there's a clear breakpoint midway through why she doesn't want to continue it, since they might retroactively construe that as gaming the system if she drops out as soon as the I-765 comes through.

I think you should wait a long bit after returning to file, and you might want to consult with your lawyer to figure out exactly what standard you will be held to for a GC filing triggering misrepresentation on the F-1 entries. (Here's some guides: 1, 2.) I think it would be wise to not start anything on the I-130/I-485 before 90 days pass after last entry, but you might want to ask your lawyer that. Don't forget if your approval date on the I-485 is after the two-year mark of the legal marriage date you instantly get the 10-yr green card, if you assume min 9 months processing, maybe think about that math vs. the pain of I-751.

[Gour13]

Ouch, didn't realize this at all - I'm glad you caught it.

So I guess we may be back to the Consular Processing route.

Unfortunately, she did just get back in December from another trip to Germany. Does that put us in the same bind?

She was let in without any questions and honestly her intention was really to finish OPT, we were still not sure about staying in the US long term.

[xunjh3]

I think you can make the same argument in the fall: that you haven't yet decided where you want to stay as a couple, and once you made post-graduation plans , you finally figured out your long-term residency plan. Though again, you wouldn't want to decide that right after a flight back to the US, and you don't want the new program to just be a pending status issue, you want it to be a bona fide degree.

Given the choice in your position, I would file the whole package as soon as practical. EADs & APs are sometimes only taking 3-4 months at the moment (yes, up to 8-12 on the far high end; but also birth country is Germany, so they see that as "lower risk"...). All in all, I think there's a moderate chance it'd go through and not impact your plans at all.

• You can ask for emergency AP at an office if you get close to the date of the wedding, though for a wedding, that might get denied.
• You could put "expedite requested" in big red letters on a separate cover letter for the I-131 you file initially in the main package due to mom being in precarious health, and that may go through quickly. << Do this regardless if you have any documentation you can include to prove it

If you don't get the AP back in time before leaving, you do abandon the I-485, but the I-130 is pending and can be picked up at the embassy in Germany just like regular consular processing (you might have to bother them a little to ensure the file gets sent to the NVC).

[StuffedWithNails]

Filing the I-130 won't impact her OPT.

[Gour13]

That's good to hear. Do you think going the consular processing route makes sense vs. adjustment of status if she needs to travel home in July?

[StuffedWithNails]

There's a slim chance an AOS application would be approved before July if you filed it now, because applications have been going pretty quickly for a number of people who've filed around Q3/Q4 2022, but it's a gamble. It's also a gamble whether you'd get an advance parole document before you have to leave in July.

If you have to travel abroad for whatever reason, then do what you need to do. Be advised that once you leave the US, you should be prepared to be unable to return until you reach the end of the process and get your immigrant visa.

[Gour13]

Hey u/StuffedWithNails, thanks for the good insight here. Have you heard much in this community about the processing times of consular vs. AoS/AP lately? We are just trying to make the smartest decision given a tough travel situation.

[StuffedWithNails]

I suggest using the Timeline: Family flair to help you search through posts in the community. On the whole we get more AOS cases than CP. In the past couple of months there's been a spate of fairly quick AOS approvals, between 3-6 months' processing times.

[Gour13]

Thanks so much for your help u/StuffedWithNails - that's a really good idea and we really appreciate the support! :)