Tricky: AOS for F1 student with F2B is pending

[ValentinAZ]

Hello,

I am graduating from a US university with my BA degree this May. I have applied for OPT, so I will have at least 5 months to decide what to do. I may or may not find a job.
I have a fiance who wants to marry me. However, I have a pending F2B and I am afraid that marrying right now would look suspicious for USCIS, i.e. having F2B and marrying a few months before I am due to leave. Incidentally, we've been dating for 8 months which may not be very long for USCIS.
Also, marrying would revoke my F2B petition that has been pending for 2 years now. It was filed by my mother and she cannot become a citizen for another 1.5 years to save the petition if I marry.

A second option is to leave the country, apply for K1 visa, come back in 1.5 years, get married while keeping my F2B just in case, then do AOS. The reason for K1 is to get married as soon as my mother becomes a US citizen and be able to stay in the country with my fiance, as opposed to waiting for another year if we applied for CR1. I would like to keep F2B as plan "b" in case something happens.
On the negative side, would be waiting to come back, more expenses, possibly getting conscripted into the Russian army and putting a strain on the relationship.

I would prefer to go with option #1, but I am afraid that both of my petitions could become ineffective. I've never broken the law in the US, have been here legally 100% of the time, paid taxes etc. The marriage would be genuine as well. However, I know of situations when genuine cases were denied, that is why I am trying to think how USCIS thinks. I also do not want to stress my fiance emotionally if it happens and I am forced to leave with no guarantees of coming back.
1. What are the odds of getting denied in my situation?
2. Which path would you guys pursue and why?
3. If my AOS gets denied and I am out status as a result, can I file for a new AOS?
4. Any advice would be greatly appreciated.

[inadmissible]

Immigrant alien relative petitions can be filed for you concurrently without invalidating each other

[ValentinAZ]

Immigrant alien relative petitions can be filed for you concurrently without invalidating each other

If I get married F2B will become invalid. It is only for unmarried sons/daughters of permanent residents.

[inadmissible]

My bad for not catching that. I still don't see anything suspicious about it. Beneficiaries of other petitions marry citizens all the time, and adjust on the basis of the latter

[ValentinAZ]

My bad for not catching that. I still don't see anything suspicious about it. Beneficiaries of other petitions marry citizens all the time, and adjust on the basis of the latter

Thank you for your response.
If my AOS got denied, let's say due to insufficient evidence, and I did not have any other status in the country, would I still be eligible to reapply for AOS without waiting for notice to appear in court for removal procedures? This is something I would like to avoid should it happen even though I could appeal there.

[inadmissible]

If you lack any other status, you will only be able to adjust based on the immediate relative petition filed by your citizen spouse

While there is typically a gap in time between I-485 denial and notice to appear for a removal hearing, there are cases where an adjustment applicant is arrested at the adjustment interview itself (eg applicant removable for aggravated felony). You can refile a new I-485 during that gap in time, and probably again during removal proceedings.

I'm not sure what specific risks you are hedging against. Why do you think your I-485 might get denied

[ValentinAZ]

If you lack any other status, you will only be able to adjust based on the immediate relative petition filed by your citizen spouse

While there is typically a gap in time between I-485 denial and notice to appear for a removal hearing, there are cases where an adjustment applicant is arrested at the adjustment interview itself (eg applicant removable for aggravated felony). You can refile a new I-485 during that gap in time, and probably again during removal proceedings.

I'm not sure what specific risks you are hedging against. Why do you think your I-485 might get denied

Thank you for your response.
I am hedging not against risk, but against uncertainty and a back-up could provide me with that, that why I try to think of all possibilities even if they are not very likely to happen.

[newacct]

Thank you for your response.
I am hedging not against risk, but against uncertainty and a back-up could provide me with that, that why I try to think of all possibilities even if they are not very likely to happen.

There shouldn't really be uncertainty. Either you are eligible for AOS or you are not. If you are eligible it should be approved; even if you messed up on your form and forgot to fill out things or forgot to include some materials, they should issue an RFE to provide the missing stuff. If you are not eligible refiling won't help anyway.

[ValentinAZ]

There shouldn't really be uncertainty. Either you are eligible for AOS or you are not. If you are eligible it should be approved; even if you messed up on your form and forgot to fill out things or forgot to include some materials, they should issue an RFE to provide the missing stuff. If you are not eligible refiling won't help anyway.

Okay, thank you for reassurance.

I have a questions about meeting financial requirements. I think the most viable option would be to file i-864 through my mother. She has a husband but they have filed taxes separately. However, by herself, she does not have enough income to cover myself, herself and her husband (125% of the poverty line for 3 persons). She would have enough income if she could only include herself and myself. Her husband is not a dependent but my understanding she has to include him on the form.

My question is can they combine their income to meet the requirement since they live in the same household?

[newacct]

Okay, thank you for reassurance.

I have a questions about meeting financial requirements. I think the most viable option would be to file i-864 through my mother. She has a husband but they have filed taxes separately. However, by herself, she does not have enough income to cover myself, herself and her husband (125% of the poverty line for 3 persons). She would have enough income if she could only include herself and myself. Her husband is not a dependent but my understanding she has to include him on the form.

My question is can they combine their income to meet the requirement since they live in the same household?

The petitioner is your new spouse, who will need to complete an I-864. If his/her household income is insufficient, a joint sponsor can be used, who will also need to fill out an I-864. The joint sponsor's own household income needs to be sufficient; there is no combining income between different sponsors -- only between household members of a single sponsor.

Your parents cannot be counted as your spouse's household members, since they are not dependents of your spouse and in-laws are not one of the types of non-dependent relatives living in the same household who can be counted. So your parents and your spouse cannot combine income.

As the intending immigrant, your income can be counted as part of any sponsor's household income. So for your spouse's I-864, your income can be counted (combined with his/hers) if it will make it sufficient. Or if not, for your parent's I-864, your income can be counted (combined with theirs) if it will make it sufficient. Her spouse will need to be counted in her household size. How they filed taxes does not affect that. His income can be counted if he will fill out an I-864A.

[ValentinAZ]

The petitioner is your new spouse, who will need to complete an I-864. If his/her household income is insufficient, a joint sponsor can be used, who will also need to fill out an I-864. The joint sponsor's own household income needs to be sufficient; there is no combining income between different sponsors -- only between household members of a single sponsor.

Your parents cannot be counted as your spouse's household members, since they are not dependents of your spouse and in-laws are not one of the types of non-dependent relatives living in the same household who can be counted. So your parents and your spouse cannot combine income.

As the intending immigrant, your income can be counted as part of any sponsor's household income. So for your spouse's I-864, your income can be counted (combined with his/hers) if it will make it sufficient. Or if not, for your parent's I-864, your income can be counted (combined with theirs) if it will make it sufficient. Her spouse will need to be counted in her household size. How they filed taxes does not affect that. His income can be counted if he will fill out an I-864A.

Thank you for the great news.
My parents will be sponsoring me together and filling out I-864, not my future spouse.

I also have a question regarding my own income: I have had a job on campus, but I will lose it upon my graduation. Will I still be able to count this income for the purposes of immigration?

[newacct]

Thank you for the great news.
My parents will be sponsoring me together and filling out I-864, not my future spouse.

I also have a question regarding my own income: I have had a job on campus, but I will lose it upon my graduation. Will I still be able to count this income for the purposes of immigration?

Your future spouse, as the petitioner, must fill out an I-864. Your parent, as the joint sponsor, will fill out another I-864. If the second parent's income needs to be counted in the first parent's household income for it to be enough, that second parent will need to fill out an I-864A.

As for your income, you're only supposed to be able to count income that can continue after you immigrate. Hopefully there is still a while until you graduate. But I think in general if your job is in the US they will assume it can continue.

[boniemmanuel]

I-864 Related Answer

Okay, thank you for reassurance.

I have a questions about meeting financial requirements. I think the most viable option would be to file i-864 through my mother. She has a husband but they have filed taxes separately. However, by herself, she does not have enough income to cover myself, herself and her husband (125% of the poverty line for 3 persons). She would have enough income if she could only include herself and myself. Her husband is not a dependent but my understanding she has to include him on the form.

My question is can they combine their income to meet the requirement since they live in the same household?

This is not meant to be legal advice in any way because I am not an attorney. However, I have gone through the process and read up on the laws that govern public charge admissibility related issues so I will try to share my knowledge. However, don't try to use anything you learn from lay-people on this forum, in place of a licensed attorney's advice. I suggest you pull up the instructions for filing I-864 forms, read every single word in those instructions, and conduct detailed research into Affidavit of Support issues, before deciding the way forward. Now having given you all these caveats, here is my advice.

If your mother's income is not sufficient evidence that she can support both of you at 125% of the National Poverty Level, then explore whether her husband can file for you as a Joint Sponsor.

If that is not possible, there is the option of filing an I-864A (read the instructions about this alternative), wherein your own income can be considered alongside that of your mother in determining the risks you pose of becoming a public charge. I initially planned to follow that route because in my family we basically support one another, and what I have to an extent is available to my mother (whom I support along with my elder brother; although he is her main provider).

However to qualify to file an I-864A (wherein you are stating that you are part of your mother's household and thus your income is available to her), you must atually live in the same house as she does, and/or be able to show you pay bills in her house etc. You must show that you have been living with her for at least six months; although a year or longer is more convincing.

That is my two-bits about the Affidavit of Support thing!

...Now for another thing you mentioned; namely the difficulty in choosing between waiting for an F2B Petition to be approved and then for your Priority Date to become current so that you can file an F2B based AoS, versus marrying your fiance and letting your fiance sponsor you for a green card, and/or going back to Russia, having your fiance file a K-1 visa application, etc.

These are tough choices you have before you, and regardless of whichever path you eventually choose, you will have to sacrifice something, for you cannot pursue all these avenues, or walk all these paths. I faced a similar hard choice last year in February, when I eventually got an employment based green card sponsorship from an employer (in a high paying job), versus my already approved F2B Petition (just pending PD currency), and admission into a PhD Program in a prestigious university with full scholarship and a generous living grant.

The employment green card option may have been faster (indeed in hindsight I can now see that if I had allowed my employer to sponsor me I would most likely have my green card now), but they wanted me to sign an employment contract with them and bind myself to serve them for at least 3-years after getting the green card. Since my work with them was a full-time job (on F-1 OPT), I would have had to give up the PhD Program admission and generous fellowship.

This was one of the most difficult choices I have ever faced, but I eventually chose to decline the employment based green card sponsorship, resigned my job at the end of my OPT despite receiving a generous raise designed to encourage me to stay, and enrolled in the PhD Program. I have since applied for my I-485 based on my mother's approved F2B I-130, but I may not get my green card until the end of next year, because my local office (i.e. my local USCIS Field Office) is a very busy office and they do not schedule interviews early. Yet when all is taken into consideration, I think taking the long view as I did, and choosing education over immediate job-earnings, is the best decision for me.

No one can make the right choice for you. Only you can! So, I suggest you consider all the choices before you, do a cost benefits analysis, discuss these matters honestly with those who care for you (perhaps including your fiance), pray to God (if you are religious), and then make up your mind and stick with your decision. In the end though, know that you must give up something to get something, for you cannot walk every single path that is open to you.

Maybe getting a K-1 visa is the best option, for this way you keep the F2B Option open, while still preserving your relationship with your fiance.

Note however that with a K-1 visa, you will need to marry your fiance within 90-days of arriving in America with K-1 status! Marrying your fiance will cancel your mother's pending F2B petition, and sticking to the F2B alone may destroy your relationship with your fiance. You are definitely in a tight spot, seemingly cursed with an abundance of blessings just like I was last year. So, think carefully, do your research, meditate,reflect, and/or pray about these options, and then make a decision.

Best of luck!

[boniemmanuel]

Thank you for the great news.
My parents will be sponsoring me together and filling out I-864, not my future spouse.

I also have a question regarding my own income: I have had a job on campus, but I will lose it upon my graduation. Will I still be able to count this income for the purposes of immigration?

You cannot count income from a job you don't have! However, you may be able to count any savings from the income you earned from such a job (as liquid assets).

[ember]

Thank you for your response.
If my AOS got denied, let's say due to insufficient evidence, and I did not have any other status in the country, would I still be eligible to reapply for AOS without waiting for notice to appear in court for removal procedures? This is something I would like to avoid should it happen even though I could appeal there.

There's a policy against allowing "bridging", i.e. avoiding the accrual of unlawful presence by filing subsequent petitions. So, during your second petition you would be accruing that unlawful presence if you have no other status.

See: https://www.uscis.gov/ilink/docView/...tml#0-0-0-1917

"(vii) Nonimmigrants - Multiple Requests for EOS Or COS (?Bridge Filings?) and Its Effect on Unlawful Presence

The terms ?authorized status? (authorized period of admission or lawful status) and ?period of stay authorized by the Secretary of Homeland Security? are not interchangeable. They do not carry the same legal implications. See AFM Chapter 40.9.2(a)(2) . An alien may be in a period of stay authorized by the Secretary of Homeland Security but not in an authorized status.

An alien whose authorized status expires while a timely filed request for EOS or COS is pending, is in a period of stay authorized by the Secretary of Homeland Security. The alien does not accrue unlawful presence as long as the timely filed request is pending.

However, the filing of a request for EOS or COS does not put an individual into valid and authorized nonimmigrant status, i.e. he or she is not in authorized status. Therefore, if an individual has filed an initial application for EOS or COS and subsequently files additional (untimely) requests for EOS or COS, the subsequently filed request will not stop the individual from accruing unlawful presence, if the initial request is denied."

- - - Updated - - -

If you lack any other status, you will only be able to adjust based on the immediate relative petition filed by your citizen spouse

While there is typically a gap in time between I-485 denial and notice to appear for a removal hearing, there are cases where an adjustment applicant is arrested at the adjustment interview itself (eg applicant removable for aggravated felony). You can refile a new I-485 during that gap in time, and probably again during removal proceedings.

I'm not sure what specific risks you are hedging against. Why do you think your I-485 might get denied

This is misleading. Yes, OP can file a new petition, but it will not toll the accrual of unlawful presence.

---> There's a policy against allowing "bridging", i.e. avoiding the accrual of unlawful presence by filing subsequent petitions. So, during your second petition you would be accruing that unlawful presence if you have no other status.

See: https://www.uscis.gov/ilink/docView/...tml#0-0-0-1917

"(vii) Nonimmigrants - Multiple Requests for EOS Or COS (?Bridge Filings?) and Its Effect on Unlawful Presence

The terms ?authorized status? (authorized period of admission or lawful status) and ?period of stay authorized by the Secretary of Homeland Security? are not interchangeable. They do not carry the same legal implications. See AFM Chapter 40.9.2(a)(2) . An alien may be in a period of stay authorized by the Secretary of Homeland Security but not in an authorized status.

An alien whose authorized status expires while a timely filed request for EOS or COS is pending, is in a period of stay authorized by the Secretary of Homeland Security. The alien does not accrue unlawful presence as long as the timely filed request is pending.

However, the filing of a request for EOS or COS does not put an individual into valid and authorized nonimmigrant status, i.e. he or she is not in authorized status. Therefore, if an individual has filed an initial application for EOS or COS and subsequently files additional (untimely) requests for EOS or COS, the subsequently filed request will not stop the individual from accruing unlawful presence, if the initial request is denied."