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Earth at Four

Can my wife stay here?

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My wife is Austrian. We've been married since 2003. She lived with me in Boston for two years, 2004-6. She had a green card from December 2004 to May 2006, but it expired, as we didn't return to the USA until 2010. Our daughter was born in Vienna in 2008 and has US citizenship. 
 
She came with our daughter this year, on July 1, with a 90-visitor visa. It's expiring on September 29. 
 
We plan to file an I-130 (petition for alien relative) and an I-485 (adjustment of status) immediately, in order to get permanent residence, but I'm afraid it may be too late, and that my wife and daughter may have to return to Austria for some months. 
 
I'd been incredibly busy with moving to a new place, finding lodgings, buying a car, registering it, starting a new job, etc., and I'm terrible at paperwork, so I put this off until now. 
 
Also, I don't have US tax returns, which are requested on the Affidavit of Support, because I have only filed taxes in Austria since 2007. I plan to contact a tax lawyer immediately and move on that, and include a note to the affidavit saying we're moving on that. 

So that's where we're at. Thanks for any thoughts you might have.

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55 minutes ago, Earth at Four said:
My wife is Austrian. We've been married since 2003. She lived with me in Boston for two years, 2004-6. She had a green card from December 2004 to May 2006, but it expired, as we didn't return to the USA until 2010. 
 
Also, I don't have US tax returns, which are requested on the Affidavit of Support, because I have only filed taxes in Austria since 2007. I plan to contact a tax lawyer immediately and move on that, and include a note to the affidavit saying we're moving on that. 

So where have you been living since 2010? In the US?  The !-130 takes 12-14 months (or so) currently - so she will have to go back to Austria for that long. Your daughter could stay here as she is a US citizen. 

If you have been here since 2010 and haven't bothered to file paperwork OR taxes - that's more than just "terrible at paperwork" - the taxes thing, there's no excuse. You're now asking the government for help to do something that you haven't been paying for in the past 10 years by your own admission. The government doesn't care that you had to find a home or purchase a car - people do what's important to them in life. 

 

If I misread your post, and you've actually just been here a short amount of time, you could have filed the petition while you were still living in Austria - you would have had to prove domicile and support (and take care of taxes) but if you have been married for 14 years this is something you could have done a LONG time ago. 

 

If she stays now, she will be deportable as she has no green card, and if discovered, can occur a ban from the United States. The legal (and morally responsible) thing to do is she goes back to Austria and you file the paperwork and get compliant with your tax responsibilities. 

 

Many of us have to be away from our spouses for long periods of time and theres no easy way around it - it's part of life as an adult. 

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I agree with @EandH0904, there are a lot of unanswered questions here.  Was the return in 2010 just for a brief visit?  I assume it might have been since you mentioned only paying Austrian taxes.  As to your wife overstaying her visitor visa, that is not a good idea, and may lead to more headaches and more paperwork for you in the future.  I think it is best for your wife to go back with or without your daughter (that is your decision) get the IR1 filed and make visits as often as you can until everything gets decided.

 

Good Luck!


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Cheers. The 2010 visit to the USA was only that, a visit. We all lived together in Austria until January 6 of this year, when I moved alone to Virginia. I didn't file US taxes because I didn't earn money in the USA. 

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So when the USCIS replies with a confirmation that they have received our application for an I-130, that definitely does not constitute permission to stay in the USA, right? 

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Just now, Earth at Four said:

So when the USCIS replies with a confirmation that they have received our application for an I-130, that definitely does not constitute permission to stay in the USA, right? 

You file it with the i485 - as long as the i485 is pending she will be in an authorized period of stay. As soon as it is accepted for processing. Your acceptance receipt is the proof of that. (NOA1)


K1 Visa & AOS

Spoiler

2016-03-19         i-129F Sent
2016-03-24         i-129F NOA1
2016-06-14         i-129F NOA2
2016-07-08         NVC Rec'd
2016-07-12         Case #
2016-07-13         NVC Left
2016-07-14         Consulate Rec'd
2016-07-19         Medical
2016-08-11         Interview Date (approved)
2016-09-06         Issued
2016-09-09         Visa In Hand
2016-10-19         POE Dallas Fort-Worth
2016-10-30         Our Halloween Wedding

2016-11-16         AOS package sent (i-485, i-131, i-765, i-864, g-325a, DS-3025)
2016-11-17         AOS package delivered to Chicago lockbox
2016-11-23         NOA1's by e-mail and text (@ 10:30 pm CT)
2016-11-26         NOA1 hard copies
2016-12-03         Biometrics appointment in mail
2016-12-07         Biometrics (Early walk-in Desoto, appointment was for Dec 13th)

2017-02-17         Notice of card in production by email and text (@8:00 am CT, i-765) - Day 92

2017-02-22         Notice of approval by email and text (@1:00 pm CT, i-765 and i-131) - Day 97

2017-02-22         Notice of card being mailed by email and text (@7:00 pm CT, i-765) - Day 97

2017-02-25         EAD/AP combo card arrived in mail - Day 100

2017-03-03         Notice of green card in production by email and text (@4:00 pm CT, i-485) - Day 106

2017-03-03         Notice of approval by email and text (@6:00 pm CT, i-485) - Day 106

2017-03-11          Green card arrived in mail  - Day 113

2018-12-03          First day to file for ROC (i-751)

 

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Just now, Earth at Four said:

She will not be deportable when we file those forms, if I understand correctly now. 

Correct - but you can't file i485 without the i864 and the taxes being filed are required for that. 


K1 Visa & AOS

Spoiler

2016-03-19         i-129F Sent
2016-03-24         i-129F NOA1
2016-06-14         i-129F NOA2
2016-07-08         NVC Rec'd
2016-07-12         Case #
2016-07-13         NVC Left
2016-07-14         Consulate Rec'd
2016-07-19         Medical
2016-08-11         Interview Date (approved)
2016-09-06         Issued
2016-09-09         Visa In Hand
2016-10-19         POE Dallas Fort-Worth
2016-10-30         Our Halloween Wedding

2016-11-16         AOS package sent (i-485, i-131, i-765, i-864, g-325a, DS-3025)
2016-11-17         AOS package delivered to Chicago lockbox
2016-11-23         NOA1's by e-mail and text (@ 10:30 pm CT)
2016-11-26         NOA1 hard copies
2016-12-03         Biometrics appointment in mail
2016-12-07         Biometrics (Early walk-in Desoto, appointment was for Dec 13th)

2017-02-17         Notice of card in production by email and text (@8:00 am CT, i-765) - Day 92

2017-02-22         Notice of approval by email and text (@1:00 pm CT, i-765 and i-131) - Day 97

2017-02-22         Notice of card being mailed by email and text (@7:00 pm CT, i-765) - Day 97

2017-02-25         EAD/AP combo card arrived in mail - Day 100

2017-03-03         Notice of green card in production by email and text (@4:00 pm CT, i-485) - Day 106

2017-03-03         Notice of approval by email and text (@6:00 pm CT, i-485) - Day 106

2017-03-11          Green card arrived in mail  - Day 113

2018-12-03          First day to file for ROC (i-751)

 

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~~Moved to AOS from Work, Student and Tourist Visas, from OR1/CR1 P&P - As the OP is starting this process~~


Spoiler

Met Playing Everquest in 2005
Engaged 9-15-2006
K-1 & 4 K-2'S
Filed 05-09-07
Interview 03-12-08
Visa received 04-21-08
Entry 05-06-08
Married 06-21-08
AOS X5
Filed 07-08-08
Cards Received01-22-09
Roc X5
Filed 10-17-10
Cards Received02-22-11
Citizenship
Filed 10-17-11
Interview 01-12-12
Oath 06-29-12

Citizenship for older 2 boys

Filed 03/08/2014

NOA/fee waiver 03/19/2014

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Interview 05/29/14

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20 minutes ago, Earth at Four said:

Can I file with a note that I'm currently having the taxes done? 

Like if we immediately get on it with a tax lawyer?

I'm unsure about this. The reason being that normally you'd have to be compliant with requirements at time of filing when it comes to USCIS, however they would accept your filing package as long as the i864 is filed along with it. What I don't know is if they would just send an rfe for the evidence of the outstanding taxes being filed - or if it's a non-starter (grounds for denial) that you weren't compliant at time of filing. My guess would be that you'd get an rfe, since most things concerning the i864 aren't technically requirements of the original form but rather of the supporting evidence. I hope someone else could answer this better for you, since you really need to be sure and not act on guesses in this case.

 

17 minutes ago, Earth at Four said:

Another open question is, do we file the I-130 and the I-485 in the same place? Chicago Lockbox and/or the local (Kansas City, MO) office? Thanks.

It is all filed together as a package to the Chicago lockbox. Also include i-765 (EAD to work while GC is processing), i131 (AP for travel while GC is processing ) ETA for both as a combo card 3-4 months from filing, G-1145 - form for electronic case updates.

Please take a look under VisaJourney guides for a complete guide on how to assemble and file this package.

Edited by Suss&Camm

K1 Visa & AOS

Spoiler

2016-03-19         i-129F Sent
2016-03-24         i-129F NOA1
2016-06-14         i-129F NOA2
2016-07-08         NVC Rec'd
2016-07-12         Case #
2016-07-13         NVC Left
2016-07-14         Consulate Rec'd
2016-07-19         Medical
2016-08-11         Interview Date (approved)
2016-09-06         Issued
2016-09-09         Visa In Hand
2016-10-19         POE Dallas Fort-Worth
2016-10-30         Our Halloween Wedding

2016-11-16         AOS package sent (i-485, i-131, i-765, i-864, g-325a, DS-3025)
2016-11-17         AOS package delivered to Chicago lockbox
2016-11-23         NOA1's by e-mail and text (@ 10:30 pm CT)
2016-11-26         NOA1 hard copies
2016-12-03         Biometrics appointment in mail
2016-12-07         Biometrics (Early walk-in Desoto, appointment was for Dec 13th)

2017-02-17         Notice of card in production by email and text (@8:00 am CT, i-765) - Day 92

2017-02-22         Notice of approval by email and text (@1:00 pm CT, i-765 and i-131) - Day 97

2017-02-22         Notice of card being mailed by email and text (@7:00 pm CT, i-765) - Day 97

2017-02-25         EAD/AP combo card arrived in mail - Day 100

2017-03-03         Notice of green card in production by email and text (@4:00 pm CT, i-485) - Day 106

2017-03-03         Notice of approval by email and text (@6:00 pm CT, i-485) - Day 106

2017-03-11          Green card arrived in mail  - Day 113

2018-12-03          First day to file for ROC (i-751)

 

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