What happens if I filed I-130/I-485 within 90 Days of VWP but may receive the NOA1 after 90 days?

[chrisckc 0]

Hi Beautiful People,

I haven't been able to find an answer to this question so I'm hoping you guys may be able to help me.

We filed for concurrent I-130/I-485 applications. It was received yesterday. The thing is that my foreign spouse's VWP 90 days will come up on the 11th. I'm hoping that there's enough time for them to process and send out an NOA1 before her stay is expired. But in the case that we receive the NOA1 after the 90 days, is this considered overstaying? And if so, would this cause any issues later?

Thanks!

[R and L 5]

Hi Beautiful People,

I haven't been able to find an answer to this question so I'm hoping you guys may be able to help me.

We filed for concurrent I-130/I-485 applications. It was received yesterday. The thing is that my foreign spouse's VWP 90 days will come up on the 11th. I'm hoping that there's enough time for them to process and send out an NOA1 before her stay is expired. But in the case that we receive the NOA1 after the 90 days, is this considered overstaying? And if so, would this cause any issues later?

Thanks!

I don't think I have the exact information that you want, but hope it helps?!

It took us about 6 days to receive NOA1 but it can take longer. I think the guideline is 5-10 days?

I don't unfortunately know about the overstaying issue...you could always call the USCIS help line OR get an appointment with Infopass. Maybe if you have the USCIS infopass appointment and they say it's all fine, you can get some kind of written document from them? (I have no idea if this is possible or correct, but if it is, it might give you some paper to help if NOA1 doesn't arrive on time?)

We got married when I was visiting my then bf in US on VWP as well...but decided to do the long spouse visa process rather than risking they wouldn't accept our adjustment of status. We didn't plan our marriage before and it was sincerely a decision of the moment, but as we live in California - as I've read - they accept adjustment of status more rarely. So even though we can say with honest hearts that we had no intention of marrying the time I entered the country, we wanted to do this process safe.

Maybe you both are not located in CA, and I'm not saying that your case wouldn't be accepted and maybe all will be well (and much faster!!!) but please, saying this only because I care, please, double check you are doing it all by the books and have all the proper evidence. VWP has the loophole and AOS can of course be done, but please remember VWP is tricky with the regulations - and after saying this, I'm sure you know all this and I'm hopefully just saying something that you have no need to be concerned of!

Best of luck!!

[chrisckc 0]

Hi,

Ironically, we're in Los Angeles. It's understandable that it's harder here. I definitely would like to do this by the books if possible, so that's why I wanted to ask about the overstay if that's ok or not while waiting. But from what people have experienced, it takes about roughly your time. I'm of course hoping that we get it before the visa expires, but I also would like to plan for the case where it might not work out that way.

If the I-485 via VWP is denied here, can my spouse fly back and refile CR-1 there? Would the previous denial cause major issues to overcome?

Thanks!

[ceadsearc 516]

Hi,

Ironically, we're in Los Angeles. It's understandable that it's harder here. I definitely would like to do this by the books if possible, so that's why I wanted to ask about the overstay if that's ok or not while waiting. But from what people have experienced, it takes about roughly your time. I'm of course hoping that we get it before the visa expires, but I also would like to plan for the case where it might not work out that way.

If the I-485 via VWP is denied here, can my spouse fly back and refile CR-1 there? Would the previous denial cause major issues to overcome?

Thanks!

You should be fine, unless your paperwork is being processed by the San Diego offices. The overstay should not be an issue otherwise. Once you get your NOA1, you enter a new period of authorized stay.

The only real potential problem is that if your paperwork is denied for some reason, you have no right to appeal as you are adjusting from VWP. If this happened and you left immediately, you should still be able to file for a CR-1 without needing a waiver as you would not have accumulated enough overstay for a ban (someone can correct me if I'm wrong on that, though). You'd still need to overcome your reason for denial if it was relationship-based.

[caeremonarius 26]

You should be fine, unless your paperwork is being processed by the San Diego offices. The overstay should not be an issue otherwise. Once you get your NOA1, you enter a new period of authorized stay.

The only real potential problem is that if your paperwork is denied for some reason, you have no right to appeal as you are adjusting from VWP. If this happened and you left immediately, you should still be able to file for a CR-1 without needing a waiver as you would not have accumulated enough overstay for a ban (someone can correct me if I'm wrong on that, though). You'd still need to overcome your reason for denial if it was relationship-based.

This is correct. My wife and I did AOS from her VWP with a slight overstay (less than two months) and had no problems whatsoever. The VWP, overstay or intent never even came up.

Good luck!

AJ

[Alex13 5]

My overstay was about 2.5 years - never came up at all for me.

[Brother Hesekiel 2,236]

We filed for concurrent I-130/I-485 applications. It was received yesterday. The thing is that my foreign spouse's VWP 90 days will come up on the 11th.

If it was receive yesterday, then they will hammer a stamp RECEIVED on it today, tomorrow, latest on Monday. Monday is the 7th. That's still a whole work week before your spouse's I-94W expires. You have nothing to worry about.