Request for initial evidence, no I-94

[Pollox88 0]

After lots of reading this is my first post. If there is an answer somewhere else, a link would be Great.

I'm US citizen. I just got marry about 4 month ago. My wife got into the US illegally 12 years ago. She did apply for DACA, so she is technically legal right now. We sent both I-130 and I-485 a few weeks ago, but today we received a yellow sheet which says request for initial evidence. They are asking me to submit evidence of her lawful admission or parole into the US, or parole in place(which is granted if I serve in the US Army), or evidence of eligibility for adjustment under 245(i) of INA( which I did some research and she doesn't qualify because she had to be present in the US before April 30,2001 and she came into the US in 2004!! I'm not sure but I think we don't qualify for any of this options. I hope I'm wrong and someone could help me. I have 87 days to submit whatever I need to submit. She has her SSN and a work permit (it say not valid for re-entry to de US, and in the back show me is form I-766

Please help me with this.

God bless you.

[Hypnos 6,576]

Your wife does not qualify to file for AoS because she did not enter legally; she literally had no status from which to adjust.

Since you cannot provide what the RFE requires then your I-485 will ultimately be denied and your wife may be referred to immigration court where the government would seek her deportation.

You should strongly consider withdrawing the I-485, since it has zero chance of being approved.

The good news is that there is another, slightly more circuitous path to a green card.

Assuming the EWI and illegal presence is her only negative factor then you would let the I-130 proceed, have it be approved by USCIS, then reach the NVC. After you've paid the NVC fees you could then file an I-601A provisional waiver application with USCIS. If approved, your wife would then need to depart the US and interview in her home country for an immigrant visa. If approved she would then re-enter the US and would automatically become an LPR.

You can see this process described here: https://www.uscis.gov/family/family-us-citizens/provisional-waiver/provisional-unlawful-presence-waivers

You should consult with an experienced immigration attorney before embarking on this process to make sure it's appropriate for you.

Edited August 20, 2016 by Hypnos

[Hypnos 6,576]

I'd further add that there is another way to do this.

Since she's a DACA beneficiary, she could file an I-131 seeking Advance Parole. Note that this would not be a normal AP but would need to be on the basis of needing to travel for a specific non-tourism related reason. Visiting an ailing relative or in furtherance of a job requirement, for example.

Your wife would then return to the US and be paroled in through her AP. You would then be able to file an I-485 on the basis of this new entry.

This second route is a little more risky than the first, but it has worked successfully for some DACA beneficiaries.

[Pollox88 0]

I appreciate your help. After my research last night, I came up with three options. Two of them were the ones you just told me. My only concern about her leaving the country is because she is pregnant. I don't feel comfortable of let her going out of the US being pregnant in her born country.

Since she is DACA beneficiary, I thought about going to her country and take care of her grandmother who is old for a week or two, but she will be risking our baby.

The last option, is to me going to the army, spend two years there hope it won't be any war, and I think she might be eligible to get the parole-in-place. I'm wiling to take that risk for her and my baby. What would you think?

[dawning 212]

I appreciate your help. After my research last night, I came up with three options. Two of them were the ones you just told me. My only concern about her leaving the country is because she is pregnant. I don't feel comfortable of let her going out of the US being pregnant in her born country.

Since she is DACA beneficiary, I thought about going to her country and take care of her grandmother who is old for a week or two, but she will be risking our baby.

The last option, is to me going to the army, spend two years there hope it won't be any war, and I think she might be eligible to get the parole-in-place. I'm wiling to take that risk for her and my baby. What would you think?

But would that take two years? Maybe it would be faster to wait till the baby is born and then have her travel? I do agree that you want to be careful about traveling to Venezuela during pregnancy, the Zika is still very active there.

[Hypnos 6,576]

Out of the three options, I think the I-601A route is the most straightforward.

It was put in place for people exactly like your wife, for whom EWI and overstay was their only issue.

[KayDeeCee 4,891]

~ Moved from AOS from Family Based Visas to DACA ~

[Pollox88 0]

Thanks y'all.

From what I heard. DACA beneficiaries were waived from have to get out of the US. It is like she doesn't have to wait 10 year or something like that out of the country before come back to the US.

Now, it might be the possibility that I could send the approval notice indicating she was granted DACA and write a letter explaining why she doesn't have any record to get into the US. Ask them what else we can do. And if they reply me back that I have to fill out the I-601A, then I'll do it and go with her to get the visa out of the US. But if rather wait until my baby is born to go. I want my baby born here!

[Hypnos 6,576]

A letter won't do anything. She needs a legal entry from which to adjust and she doesn't have one right now. DACA doesn't count.