When should you file for R-1 status? That is a major question to be considered when you are looking at an R-1 petition. Two weeks ago, 11/29/2019, I wrote that it usually takes about five months to get an R petition approved unless you qualify for, and can afford and can obtain, Premium Processing — which takes 15 days. See last week, 12/6/2019, for further discussion regarding Premium Processing. Knowing that, when should you file?
There are a number of factors that affect this decision. Whether or not you are in the U.S. When you want to start? If you are in the US, the most important question is, are you in status? You want to file before you are out of status if at all possible. If you are still here in status when you file, you will normally be allowed to stay here while the application is processed (but see below). If you are out of status, they will normally not allow you to stay here while it is being processed.
If you are currently working, you will want to consider whether or not you need to be working while the petition is in process. If you expect to need to travel, that will also affect when you file. Finally, if you are hoping to file for a green card, that will affect your decisions regarding timing as well.
Before we go any further, I want to remind you that the processing timing is not certain. You should expect at least four to five months, and it can take longer — and that is just for the petition. It will take two to four weeks to prepare a well-drafted petition. If you are out of the country, and not in Canada, you need to plan on two to four additional weeks for your interview at the consulate in order to get your visa and come to the US. If you are Canadian, you can simply come to the border with your petition approval notice, so there is no extra delay for Canadians.
The most important issue is that if you are in the US, you need to file while you are still here legally. You can file up to the last day that you are in status. As long as the USCIS receives the petition while you are still here legally, then, the generally accepted rule is that you can stay here until the petition is approved or denied. This rule is not found in any regulation as far as I can tell, I believe it goes back to a letter written by a USCIS Commissioner decades ago. However, it has been generally accepted by the USCIS as the rule governing whether or not you can stay here while you are waiting for a petition or application to be approved.
The reason I say “generally accepted” is that there is a regulation which has been interpreted by the USCIS to say the opposite — that if your status ends before the new petition/application is approved, they will not grant you a change or extension of status, they will require you to leave the US and apply for a visa before you can come back in that status. I have only seen the USCIS use this regulation a few times, and only with people who were in F status when the petition was filed and whose F status then ran out. So, I tell people that they can reasonably expect to be able to stay here until the new petition is approved, but, if the USCIS should choose to enforce their interpretation of the regulation on you, they will pretend that the rule allowing you to stay doesn’t exist.
So, you can, normally, file up to the last day that you are here legally. If you are in F status, and want to change to R status, you should be able to file up to the last day of your sixty-day grace period. However, to minimize trouble with the USCIS, I recommend that you file, if you can, while you are still in school — before the start of the sixty-day grace period.
I suggest that you file about four months before your current status ends. This reduces the time that you will be “between” statuses and reduces the likelihood of the USCIS deciding to apply their restrictive interpretation of the regulation instead of the more general and less restrictive rule. Also, if you are already an R-1, and are applying for an extension, you are allowed to work for 240 days (8 months) after your current R-1 ends. Filing four months early will give you plenty of time to continue working even if your R-1 should take eight or nine months to process, which is unlikely, but possible.
If you are filing to change status to R-1, and you want to start working as soon as the new R-1 petition is approved, then you should probably file about five months before your current status runs out. I haven’t found any rule that states this, but the USCIS seems to disfavor filing more than six months before your current status runs out. And, I know that the Premium Processing unit will reject a request for Premium Processing if you file more than six months before your current status runs out.
Another consideration to keep in mind is that if you have recently arrived in the US in something other than R status, you don’t want to file to change status to R until at least 90 days have passed after you have entered the US. There is a new rule that if you file to change status within the first 90 days, they could decide that you committed visa fraud when you entered the US requesting one status but, apparently, intending to switch to another.
If you are out of the US, the factors are simpler. You will want to file about five months before you want to come to the US. It would be good to file before that, but I don’t recommend filing more than six months before you want to come to the US.
If you need to travel, you need to keep several things in mind. If you need to travel on your current visa before you switch to R status, you need to wait until after you get back before you file the request to change status to R. If you file the change of status request before you leave the US, it will be denied. Also, if you file the change of status request within 90 days after your come back you run the risk of being charged with immigration fraud. Once the petition is filed requesting R status, you cannot leave the US until you receive R status. At that point, you can leave, but you will need to get an R visa before you can come back (unless you are a Canadian — who do not need visas). So, you should file a petition to change status 90 days after you enter the US, and at least five months before you will need to travel because it will probably take that long to get R status unless you can successfully request Premium Processing.
Finally, if you are hoping to file for a Green Card. I strongly suggest that, unless you have at least a year remaining on your R-1, you wait to file for a Green Card until after you have requested and received your R-1 extension. I would recommend filing for your R-1 extension four or five months before your current R-1 runs out and then, after it is approved, wait 90 days if possible before filing for a Green Card. This 90-day wait is not so important when you have R status and want to apply for a Green Card, but I would do it if you can.
I hope this is interesting and helpful. Remember that this is not legal advice. It is just a summary of certain aspects of immigration law which may or may not apply to your situation. I encourage you to consulate an attorney if you think any of this may apply to your situation.
Gunnar Armstrong