I-130 for Spouse with OPT ending soon

[yongcat]

Hello,

I am an LPR soon getting married to an F1/OPT holder. I would like to file an I-130 for my spouse. However, the spouse's OPT will most likely end before the I-130 is processed/approved, but when filing the I-130, I believe there is a distinction between filing as someone currently residing in the US and someone who is outside.

Is it fine to file an I-130 in which the beneficiary is currently in the US but won't be by the time the I-130 is processed?

Also, is it fine for the beneficiary to visit the US as a visitor (using Visa Waiver Program) while they are filed for I-130?

Thank you!

[newacct]

Hello,

I am an LPR soon getting married to an F1/OPT holder. I would like to file an I-130 for my spouse. However, the spouse's OPT will most likely end before the I-130 is processed/approved, but when filing the I-130, I believe there is a distinction between filing as someone currently residing in the US and someone who is outside.

Is it fine to file an I-130 in which the beneficiary is currently in the US but won't be by the time the I-130 is processed?

Also, is it fine for the beneficiary to visit the US as a visitor (using Visa Waiver Program) while they are filed for I-130?

Thank you!

It's fine to file I-130 no matter where the beneficiary is now. However, you should make sure to fill out the right question, either Part 4 #61 or #62, depending on whether the beneficiary will do Adjustment of Status in the US when a visa number becomes available, or do Consular Processing abroad. (Note that it's when a visa number becomes available for her category and priority date that matters; when the I-130 is approved doesn't matter.)

She can always try to visit with a pending or approved I-130, but like all visitors she has to overcome the presumption of immigrant intent, and it may be harder to do that being married to an LPR.

[yongcat]

It's fine to file I-130 no matter where the beneficiary is now. However, you should make sure to fill out the right question, either Part 4 #61 or #62, depending on whether the beneficiary will do Adjustment of Status in the US when a visa number becomes available, or do Consular Processing abroad. (Note that it's when a visa number becomes available for her category and priority date that matters; when the I-130 is approved doesn't matter.)

She can always try to visit with a pending or approved I-130, but like all visitors she has to overcome the presumption of immigrant intent, and it may be harder to do that being married to an LPR.

I see, thank you for the answer!