Several Questions: AOS from an expired Tourist Visa

[bijoux 0]

Hi everyone. I have several questions that I am submitting on behalf of a good friend in need of help. I have recommended that he speak to a lawyer regarding his situation too, but I have done paperwork for my husband and a few other people based on the helpful info from this wonderful website, so I wanted to see what input others may have. I've looked for answers to my questions on the forums and haven't found anything so far to clarify things because it's a confusing situation that I'm not 100% familiar with.

Scenario:

My friend came here from Laos 4 years ago on a tourist visa (B-2, I think). The visa was good for 6 months and he let it expire and has been living here out of status ever since. He recently got married to a Lao woman here who just got her Green Card (NOT a citizen) a few months ago and has had a permit to live here for several years (she got her Green Card as a domestic violence victim of her ex-husband, whom she divorced years ago). They found this Laotian-American government-worker to do their paperwork for them and don't know if he's doing it right or not (he doesn't work for immigration). My understanding was that to adjust status, one must send the whole packet in together - I-130, I-485, I-864, I-765, and I-131 (and supporting evidence). The guy doing it for them only sent in the I-130 packet and payment for that portion and didn't give them copies of anything. They got a receipt for it that it had been accepted and everything. I thought it was wrong to do it this way, so they've been frantically trying to assemble all the other applications to mail, but now I'm reading on the forum that the I-130 is supposed to be sent first if the petitioner is only a Green Card holder.... is this correct? I'm so confused. What should they be expecting in the mail? Is it safe for them to go ahead and send all the other stuff, or do they need to wait on the I-130 to be approved? Can anyone show me the correct link where it gives info on what to do in this situation? Also, how long does it usually take for the I-130 to be approved on its own before sending the rest (if that is how the case is handled in this particular situation).

Sorry for all the specific details, but I wanted to be clear about this unusual situation. Thanks so much for any help you can give!!!

[JimVaPhuong 4,863]

The only persons who are eligible to submit an adjustment of status petition (I-485) concurrently with the immigrant visa petition (I-130) are immediate relatives of United States citizens. This means spouses, unmarried children under 21 years of age, and parents. This is because their is no annual limit on those types of visa numbers, so those immigrants are immediately eligible for a visa number when the I-130 is approved.

A green card holder is not eligible to submit an immediate relative petition. Any I-130 they submit is a family base visa petition, which are all subject to numerical limits. Merely having an approved I-130 does not make a visa number available. The visa number doesn't become available until the priority date is current. The immigrant can't submit an adjustment of status petition until a visa number is available. This is clearly spelled out in section 245(a) of the INA.

The government employee who is helping your friends appears to be doing this correctly. The I-130 must be submitted and approved, and then the priority date must be current before they can file for AOS.

Unfortunately, your friend will not be able to adjust status because they are currently out of status. An immigrant submitting an AOS petition must have maintained their lawful non-immigrant status right up until their I-485 is accepted by USCIS. There is an exception for someone who qualifies for an immediate relative petition, as described above. Someone adjusting on the basis of a family based petition doesn't qualify for this exception.

[Harpa Timsah 13,258]

Jim, the OP double posted and one of the threads got moved over here. http://www.visajourney.com/forums/topic/283105-several-questions-aos-from-a-b2/page__pid__4294110#entry4294110

I asked there, but I wonder if you know: to overcome the overstay, can the spouse of LPR file a 485a once they are able to adjust, or do they have to go home and continue with consular processing and file overstay waivers?

Edited November 16, 2010 by Harpa Timsah

[JimVaPhuong 4,863]

Jim, the OP double posted and one of the threads got moved over here. http://www.visajourney.com/forums/topic/283105-several-questions-aos-from-a-b2/page__pid__4294110#entry4294110

I asked there, but I wonder if you know: to overcome the overstay, can the spouse of LPR file a 485a once they are able to adjust, or do they have to go home and continue with consular processing and file overstay waivers?

The I-485A is for people who are eligible to adjust status under INA section 245(i). In order to be eligible, they would need to have been present in the US on December 21, 2000, and have had an I-130 (either family or employment based) filed on their behalf by April 30, 2001. They also have to pay a $1000 fine. The OP's friend isn't eligible.

[bijoux 0]

Jim, you are the one I was hoping could help me since you seem the most knowledgable regarding all this. Thanks for your input, and I have a few more questions.

I am wondering the same as Harpa - is my friend even eligible to adjust status at all (as in ever) since he has been out of status and his wife only has a Green Card? I guess you're basically saying that he can't, correct? Is there absolutely no way he can adjust status based upon his marriage to his non-citizen wife? They won't approve an I-130 in this situation? The man doing their paperwork has supposedly helped lots of Laotians in America, so this would mean he was very wrong to file their I-130, right? I'm sorry if you may have already answered all this before, I just wish to understand it very clearly so I can explain it to my friend. If he can't adjust this way, should he return to Laos and file a K-3, or would he be from re-entering the U.S. since he previously overstayed? I know that no one can say for sure what would happen in any situation, I'm just asking for the laws and likelihood.

Thanks again. I think I will strongly recommend that he speak with an immigration attorney.

[bijoux 0]

Have been researching a bit more and think I'm finally getting this. He will have to wait 5 years for his wife to become a USC to adjust his status. I'm wondering if it will hurt him that they already sent in the I-130 since they are unable to do anything further and also wondering why that guy thought it was appropriate to send it in in the first place.