Adjustment of Status Denied For 2 Day Error

[brian99 1]

My new wife and her kids came here on a K-1 Fiance visa.

We were supposed to marry within 90 days but in fact married 92 days after she arrived here.

USCIS has just denied her 'adjustment of status' application and is saying my wife and her kids have to return to the Philippines and start a new visa process all over again. It's taken us 2 years to reach this point and we don't want to spend the time and money starting over. The idea of sending my legal wife and stepchildren back to the Philippines is absurd.

Anyone have any ideas?

And for those at earlier stages in the process, you really need to respect the 90 day window!

[Ryan H 3,791]

Moved from K1 Process & Procedures to Adjustment of Status from Family Based Visas forum; topic is related to AOS process.

[Penny Lane 8,159]

The 90 days are not a suggestion, but a rule. They tell you at the issuance of the visa as well as the POE what your obligations are. Unfortunately, you will likely have to start over due to this mistake.

[brian99 1]

Moved from K1 Process & Procedures to Adjustment of Status from Family Based Visas forum; topic is related to AOS process.

Thanks

[C-ma'am 684]

The 90 days are not a suggestion, but a rule. They tell you at the issuance of the visa as well as the POE what your obligations are. Unfortunately, you will likely have to start over due to this mistake.

What Evylin said + Your wife is no longer legal, as she became out of status after the 90 days had passed without getting married.

[Harpa Timsah 13,258]

No, your wife can stay here and file for adjustment of status again. HOWEVER, you must now file a I-130 with it as well, to establish a marital relationship. The I-129F is void because you did not marry within the 90 days. But as long as they all entered with inspection (they did) you can file a CONCURRENT I-130/I-485 Adjustment of Status package for them all, and they can wait it out inside the US.

Here is the VJ guide: http://www.visajourney.com/content/i130guide2

You will also have to file this for each stepchild.

Edited June 21, 2012 by Harpa Timsah

[brian99 1]

The 90 days are not a suggestion, but a rule. They tell you at the issuance of the visa as well as the POE what your obligations are. Unfortunately, you will likely have to start over due to this mistake.

We had some logistical problems and received some bad advice that the marriage (even at the late date) validated that the fiance application was sincere and in good faith.

I could understand being denied if my wife carried a contagious disease or was a member of Abu Sayyaf. But she's an exemplary woman who's fatal flaw was that she married a guy who screwed up and set the wrong wedding date. And only wrong by 2 days.

Today I contacted my Congressman and an immigration lawyer (an expense I'd prefer to avoid). Whatever options they may present us, my wife and stepkids are NOT going back to the Philippines.

[Penny Lane 8,159]

We had some logistical problems and received some bad advice that the marriage (even at the late date) validated that the fiance application was sincere and in good faith.

I could understand being denied if my wife carried a contagious disease or was a member of Abu Sayyaf. But she's an exemplary woman who's fatal flaw was that she married a guy who screwed up and set the wrong wedding date. And only wrong by 2 days.

Today I contacted my Congressman and an immigration lawyer (an expense I'd prefer to avoid). Whatever options they may present us, my wife and stepkids are NOT going back to the Philippines.

They do not have to go back to the Philippines, but you WILL be spending money and starting another immigration process.

EDIT: See Harpa's post above.

Edited June 21, 2012 by Evylin

[Harsh_77 716]

We had some logistical problems and received some bad advice that the marriage (even at the late date) validated that the fiance application was sincere and in good faith.

I could understand being denied if my wife carried a contagious disease or was a member of Abu Sayyaf. But she's an exemplary woman who's fatal flaw was that she married a guy who screwed up and set the wrong wedding date. And only wrong by 2 days.

Today I contacted my Congressman and an immigration lawyer (an expense I'd prefer to avoid). Whatever options they may present us, my wife and stepkids are NOT going back to the Philippines.

Follow what Harpa said, you should be able to adjust status that way.

Overstay for USC spouse is forgiven.

[brian99 1]

No, your wife can stay here and file for adjustment of status again. HOWEVER, you must now file a I-130 with it as well, to establish a marital relationship. The I-129F is void because you did not marry within the 90 days. But as long as they all entered with inspection (they did) you can file a CONCURRENT I-130/I-485 Adjustment of Status package for them all, and they can wait it out inside the US.

Thanks.

Just minutes ago I got a call from the Congressman's office saying the same thing. My wife is currently an illegal alien (despite having a SSN and work authorization). However, just filing the I-130 transforms her legal status and allows us either to pursue that route or figure out how to overturn the denial. The congressman's office says that their understanding is that DHS can't deport my wife or kids since they didn't enter under false pretenses - as long as we still have some action pending with USCIS.

The USCIS case officer told us that there's no available appeal process but we're looking to see if we can in fact contact someone higher up the chain of command to insert some human reason and compassion into the equation.

[NigeriaorBust 4,087]

also the child is an issue K1 has k2's CR1's don't. They may have to send the child home ( alone? )

[Harpa Timsah 13,258]

However, just filing the I-130 transforms her legal status and allows us either to pursue that route or figure out how to overturn the denial.

The USCIS case officer told us that there's no available appeal process but we're looking to see if we can in fact contact someone higher up the chain of command to insert some human reason and compassion into the equation.

Filing the I-130 by itself most certainly does NOT change her legal status. It merely establsihes a familial relationship which, by itself, confers zero legal status. Also, her work authorization has been revoked because the thing it was based on, the I-485, was denied.

You will file a CONCURRENT I-130/I-485 for each person, and once the package is accepted for initial review, they will be in another period of authorized stay, just as before.

You will not be able to overturn the denial, so don't waste time. An I-485 can be approved based on an approved I-129F petition and subsequent marriage to the petitioner within 90 days of entry into the US (category C on the I-485). You did not follow that, and the I-485 was correctly denied. It is dead.

If you file a NEW I-485 along with the I-130, you will basing your I-485 on a marriage to a USC and legal entry (category A on the I-485). It is a new AOS application, based on a new category.

ETA for above: The children will need their own I-130/I-485 as well. The I-130 for each of them will establish the step-parent relationship and they entered with legal inspection. They will not be sent home alone.

Edited June 21, 2012 by Harpa Timsah

[Penny Lane 8,159]

The USCIS case officer told us that there's no available appeal process but we're looking to see if we can in fact contact someone higher up the chain of command to insert some human reason and compassion into the equation.

Follow the advice Harpa has given you. You are wasting your time looking for any other solutions, as there aren't any to be had. Immigration processes are not compassionate to your situation - they have rules to follow and so do you. A rule was broken and now it needs to be fixed. Luckily your family gets to stay with you while you fix it, but it will cost more time and more money. No "higher up" is going to change that.

[belinda63 2,981]

Listen to Harpa, don't waste time or money trying to appeal or hiring and attorney. They entered the country legally, married the K-1 petitioner, thus you do the concurrent I-130/I-485 filing for both of them. The child cannot piggyback as he did on the K-1, a separate petition needs to be filed for him.

Sad to say her EAD has been cancelled with the denial of the AOS. She will have to wait for the new one to start/continue work.

Edited June 21, 2012 by belinda63

[brian99 1]

Harpa and all, thanks for the great advice.

Disappointing that the USCIS officer we met with said my wife and stepchildren would have to return to the Philippines when I've heard from a few other sources now that this is not true.

Regards my wife's status... I was told that once the I-130 is filed, she is no longer deportable by USCIS rules. Realistically, I don't think she's likely to be deported regardless but this information would be comforting if true.

In any case, seems like we have another mountain of paperwork in front of us but nothing insurmountable.