K-3 visa, forgot to file form I-485

[wannab2gether 0]

Hi everyone,

I entered the US 21 months ago on a K-3 Non Immigrant (spousal) Visa. I received conditional resident status upon approval of the I-130 petition. My husband and I completely missed the necessary action of filing form I-485 for Adjustment of Status, but we did file and received approval for the EAD. We were under the mistaken assumption that we should wait until the 90 day period before my 2nd year anniversary of being in the US to file for Adjustment of Status. Apparently filing form I-751 was required at the moment I entered the US. I am stressing big-time because I see that it takes a very long time to receive approval for adjustment of status, which would be well beyond the expiration date of my K-3 visa on August 4th 2011.

We just filed the I-751 package and USCIS returned it with the note stating the package is missing the I-551 Permanent Resident or Alien Registration Card. <I never had one.> I had sent in copies of my K-3 Visa and I-94 along with my A# because I thought I would receive a I-551 card after the conditions of residence were lifted.

My questions are:

1) What are the potential consequences of filing I -485 this late?

2) What are the next steps we should take to avoid lapsing my K-3 Visa in order to get back on track for approval of AOS and lifting of conditions of residence?

Cheers!

[wannab2gether 0]

Correction: Apparently filing form I-485 was required at the moment I entered the US.

[Darnell 8,478]

K-3 visas are a funny thing -

check yer expiration date on yer I-94 - it should have been a 2 year duration from the POE date.

You must file the AOS paperwork within 2 years of arriving in the USA

or

within 90 days of the I-94 expiration date, which ever is earlier.

*** not a K-3 visa topic, moving to AOS/family forum ***

[Harpa Timsah 13,258]

You didn't receive conditional resident status when you entered with a K-3, in fact you won't be a resident until your AOS is approved. However, there is no need to worry. Once your I-485 was accepted for initial review, you entered into a new period of authorized stay. If you have been married over two years by the time your AOS is approved (and looks like you will be - been here 21 months already and I imagine you were married at least 3 months before that because the paperwork takes a bit) then you will get an unconditional 10-year Green card and not have to remove conditions at all.

Check into what permanent residence is to avoid confusion going forward - you're not a permanent resident at all at this time. Also, AOS only is taking about 4 months at this time. Good luck.

[wannab2gether 0]

K-3 visas are a funny thing -

check yer expiration date on yer I-94 - it should have been a 2 year duration from the POE date.

You must file the AOS paperwork within 2 years of arriving in the USA

or

within 90 days of the I-94 expiration date, which ever is earlier.

*** not a K-3 visa topic, moving to AOS/family forum ***

That's funny indeed, the I-94 states the expiration date 2 years after my entry. My visa however expires two months earlier. Therefore I should just file it anytime within the 2 years since my entry.

[wannab2gether 0]

You didn't receive conditional resident status when you entered with a K-3, in fact you won't be a resident until your AOS is approved. However, there is no need to worry. Once your I-485 was accepted for initial review, you entered into a new period of authorized stay. If you have been married over two years by the time your AOS is approved (and looks like you will be - been here 21 months already and I imagine you were married at least 3 months before that because the paperwork takes a bit) then you will get an unconditional 10-year Green card and not have to remove conditions at all.

Check into what permanent residence is to avoid confusion going forward - you're not a permanent resident at all at this time. Also, AOS only is taking about 4 months at this time. Good luck.

Well thanks Harpa, my confusion is mostly with the status of conditional residence and not with permanent residency.

I intend to file my AOS today, which is 3.5 weeks before my K-3 visa expires and 3 months before my I-94 expires. My greatest concern is: what will happen with my status if I have not yet received an approval for my AOS by the time either my K-3 or my I - 94 expires.

Should I:

a) File I-485 (AOS) first, then wait? Or,

b) File I-485 and soon after that apply for extension of status?

If you have been married over two years by the time your AOS is approved (and looks like you will be - been here 21 months already and I imagine you were married at least 3 months before that because the paperwork takes a bit) then you will get an unconditional 10-year Green card and not have to remove conditions at all.

So, to verify with you, what you're saying is that if I receive an approval for AOS after we have been married for over 2 years within the US, we will not need to file for removal of conditions (I-751)? Will USCIS notice that from the data in the AOS and simply send a greencard?

I appreciate your response : )

[Darnell 8,478]

That's funny indeed, the I-94 states the expiration date 2 years after my entry. My visa however expires two months earlier. Therefore I should just file it anytime within the 2 years since my entry.

Yup - pay attention to the I-94 expiration date, in yer particular case.

No more panic? You good now?

Good Luck with the AOS filing !

[Harpa Timsah 13,258]

Well thanks Harpa, my confusion is mostly with the status of conditional residence and not with permanent residency.

I intend to file my AOS today, which is 3.5 weeks before my K-3 visa expires and 3 months before my I-94 expires. My greatest concern is: what will happen with my status if I have not yet received an approval for my AOS by the time either my K-3 or my I - 94 expires.

Should I:

a) File I-485 (AOS) first, then wait? Or,

b) File I-485 and soon after that apply for extension of status?

So, to verify with you, what you're saying is that if I receive an approval for AOS after we have been married for over 2 years within the US, we will not need to file for removal of conditions (I-751)? Will USCIS notice that from the data in the AOS and simply send a greencard?

I appreciate your response : )

Yes, file I-485 and wait. You will be called to go get your fingerprints and photo taken, and you may get called for an interview. You will not need to file any extension of status at all. You will enter a new period of authorized stay once the I-485 is accepted which will continue until it is adjudicated. They will notice that you've been married for two years and you will be issued a 10-year GC

Regarding the conditional v. permanent resident confusion, it seems you were under the impression that being in the US made you a conditional resident, which it did not. If you had filed I-485 when you first entered, you would have been granted conditional residency. You would have gotten a greencard which is in every way the same as other greencards, except it would expire in 2 years from issuance. You would renew the greencard by showing once again that your marriage is bona fide and by filing I-751: that's the "conditional" part.

But, no matter. The K-3 is a multiple entry visa, and you had an EAD, so I can see how it would seem that you were a resident - you had rights to work and travel and in every way seemed like a normal resident.

You file I-485 now and get your greencard, and you will have the privilege of skipping over the removing of conditions (I-751) process, and save some money along the way. The only downside is that you haven't been accruing any residency time these 2 years, so if you wanted to go for citizenship, you will have to wait 3 more years. Had you filed when you first entered, you would be eligible some time next year.

If you plan to travel after your I-94 expires, you can apply for Advance Parole (AP) which is a temporary travel permission for people who no longer can use their visas and who have I-485 pending. The AP is free when filed in conjunction with the I-485.

Good luck!

Edited July 11, 2011 by Harpa Timsah

[wannab2gether 0]

Darnell and Harpa,

Thanks peeps! I just got back from the physical exam doc.. got jabbed with the vaccinations again (since the doc didn't like the way "DTP" was written on my vaccination record completed and printed 2 years ago) today, weeeee! I'm on track again, thanks to you Cheers!

Yup - pay attention to the I-94 expiration date, in yer particular case.

No more panic? You good now?

Good Luck with the AOS filing !

[Darnell 8,478]

Yay ! Cool ! Keep at it !