I have been a college student in F-1 status for the past three years. Last year I married my U.S. citizen husband here and we recently applied for my green card. When we attended the adjustment of status interview at the local USCIS office, the officer said that I was not eligible to adjust status because my most recent entry into the U.S. had been with my F-1 visa and not with Advance Parole. He said I should have applied for Advance Parole when I applied for my green card. I told him I had not done that. A few weeks later we received the denial in the mail. Can I appeal this decision? If not, can I reapply?
You would not be successful with an appeal, but you may be able to reapply for adjustment. Unless an adjustment applicant is in H or L nonimmigrant status, that person may not leave the U.S. without Advance Parole (AP) after submitting the adjustment of status application.
If you did leave the U.S. and then reentered in your nonimmigrant status ( F-1 in your case, but the same issue would come up for someone who entered on a TN, J-1, B-2, or another nonimmigrant visa), U.S. Citizenship and Immigration Services (USCIS) will consider your adjustment application abandoned – in other words, assume that you are no longer interested in pursuing it.
You could appeal the decision, but your appeal will in all likelihood be denied as well. That’s because, as a legal matter, you are not eligible to adjust status once you have filed for adjustment and reentered the U.S. in F-1 status.
Because you entered the U.S. in F-1 status and are maintaining legal status, however, you are eligible to apply once again for adjustment. You may want to consider waiting 30 to 60 days before submitting a new application. When a person enters the U.S. in a nonimmigrant status such as F-1, that person is legally obliged to intend to return to his or her home country one day. (That’s the reason you were asked to provide documents showing your plans to return home at the end of your studies when you went to your consular interview, as described in Nolo’s article, “How to Prove Intent to Return Home After Studying in the U.S.”
That legal obligation relaxes over the course of 30 to 90 days. Although USCIS is less strict in applying this so-called “nonimmigrant intent” requirement to direct relatives of US citizens, such as spouses, it is a good idea to create that cushion of time between your F-1 entry and when you apply for adjustment.
Once you do reapply for adjustment, you will need to submit new forms, another copy of all the relevant documents, new fees, and a new, sealed, medical exam that is no more than one year old at the time of your second interview. You may therefore need to visit the doctor who provided your exam and obtain a new one.
You were fortunate that the Customs & Border Patrol (CBP) whom you met upon entry to the U.S. agent did not question you about your U.S. citizen spouse. Because of the nonimmigrant intent requirement that applies to people in F-1 status, you might not have been allowed back into the U.S. if the agent believed you were entering to remain in the U.S. as a permanent resident.
This rule is applied inconsistently by CBP and USCIS, with some officers ignoring it while others take a hard line. As a general rule, it is best for an F-1 student who has married a U.S. citizen to avoid international travel both before applying for adjustment of status and before receiving AP after filing the application. For more information about nonimmigrant intent, please refer to Nolo’s article, “Will 30/60- Day Rule Help Clear Suspicion About Your Intentions Upon U.S. Entry?”
If you want to be able to travel outside of the U.S. after applying for adjustment, you should submit your AP application on Form I-131 along with your second adjustment application (and an application for employment authorization on Form I-765).Or if you’ve already submitted the adjustment application, you can use your receipt notice to request AP later, but this is a more difficult way to do it. USCIS can sometimes take up to six months to send the AP document, so you should not plan any trips abroad until you have actually received the AP.
For a full analysis of this issue, any other potential reasons you were denied, and the possibility that you will be approved next time, consult with an immigration attorney who has experience with marriage-based adjustment.