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How does Green Card application Denial affects F-1 Visa OPT application and future green card application?

Durham, NC |

I am a graduate student holding F-1 Visa. My husband works for a University and by their support, we were applying for green cards (Basically, I was getting one, because I am married to my husband.) My status is at RFE (485). Unfortunately, my husband and I are going through a divorce. He is not letting me know what documents that I need to send to resolve RFE. My guess it will result in DENIAL.

1. In this case, what happens to my current F-1 Visa status (Stamp valid though 2014 summer, I-20 says through 2016 summer).
2. Can I get a new visa stamp?
3. Can I apply for OPT after my defense - when I complete my study?
4. Can I apply for green card again? Will there be any disadvantage?
5. Can I somehow withdraw green card application at this point?

Thank you for your answers in advance.

Attorney Answers 3

Posted

To be in F-1 status you are required to have non immigrant (temporary) intent. In order to apply for adjustment you must have immigrant (permanent) intent. CIS may consider you no longer in student status when you applied for adjustment. You will need to convince CIS of your non immigrant intent and maintain a full course of study.

The US consulate will also need to be convinced of your non immigrant intent (as well as many other factors) before they grant another F visa.

If you are in lawful student status you may receive OPT.

You may apply for resident status again unless CIS determines that you entered into the marriage for the purpose of obtaining an immigration benefit. See INA 204(c).

You may withdraw the adjustment application. Withdrawal is not likely to have any impact other than as a denial.

919.225.3963
immigration@rbrownllc.com
www.brownimmigrationNC.com

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8 comments

Asker

Posted

How do I withdraw the adjustment application?

Robert Louis Brown

Robert Louis Brown

Posted

Send a letter to CIS include the number or a copy of the filing receipt and ask to withdraw or make an InfoPass appointment and go to the local CIS office . I recommend that you set up a consultation with an attorney before you take any action as you may have some options.

Robert Louis Brown

Robert Louis Brown

Posted

immigration@rbrownllc.com www.brownimmigrationNC.com

Asker

Posted

Thank you for your reply. When I withdraw, what status am I going to be? Back to F-1? or illegally staying in U.S.? Should I apply for F-1 visa again?

Robert Louis Brown

Robert Louis Brown

Posted

If you withdraw ( I recommend you discuss with an attorney before you withdraw) you revert to your underlying status. Since you may no longer be considered F-1 because you had the intent to remain permanently, CIS may determine you do not have any underlying status.

Asker

Posted

Which means I will be illegally staying in U.S. correct? And since I applied for green card (even though I withdraw from it) I won't be able to apply for F-1 Visa again?

Asker

Posted

According to your answers, whether I get denial or withdraw my application (basically no matter what), I won't be able to stay in U.S. if I don't get this green card. Especially not as F-1 status bc I applied for green card???

Robert Louis Brown

Robert Louis Brown

Posted

This is not a good forum to discuss your situation. You should contact an attorney and discuss in confidence.

Posted

1, 2, 3. Depends on whether you have continued to maintain F-1 status.
4. If you have a means to do so, yes.
5. Yes.

You should retain an experienced immigration lawyer to review all the facts, advise you, and handle the case. You can find one through http://www.ailalawyer.com.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

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1 comment

Asker

Posted

What do you mean by 'continued to maintain F-1 status'? How exactly do I do that? The question is what should I do to convince CIS to consider me as a student without intent to stay in U.S. permanently (cause it seems that F-1 visa status is based on that) even after a green card application?

Posted

1) If you are otherwise maintaining it despite the I-485 filing, you may want to continue to do so
2) Depends what visa you will seek
3) As long as you continue to maintain status, you may be eligible for OPT
4) Yes
5) you can withdraw and it will be denied if you divorce before the decision is made. Having said that errors happen all the time.

This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. If you would like additional information based on this response, please contact my office at 510 657 7665 or 415 902 0832 to schedule a consultation.

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