Late Bloomer on filing for AOS--4 years late that is?

[Cry_Tuff 0]

Hello everyone It's been a long while since we posted in here (obviously).

Well, as you can see by our timeline, we got the K-1 Visa and were married within the 90 day time frame ----in 2008. Since then, one thing after another has went wrong. Car problems, losing my job, health problems between us all, other family issues...you name it, it's pretty much happened. Once we would have the money to file for the AOS, something else went wrong to where we had to use the funds elsewhere. My parents are the co-sponsors for my husband. Through all of this, we have somehow managed to stay together, and it has made our relationship stronger. Over the past 4 years, my husband has done some odds and ends jobs for family, helped with my 2 minor children and kept up the house while I worked or attended college, volunteered assisting my daughter's Girl Scout Troop, a food pantry, and a soup kitchen--helping those less fortunate than ourselves. So, he hasn't just been sitting around.

Nonetheless, we haven't filed for the AOS, and intend on doing so in August (NO MATTER WHAT!). A lawyer had advised me to just go ahead and send it in, they may have questions as to why we haven't filed previously...but since we haven't received anything from USCIS as yet, we should be fine....that basically he is legal, but out of status. Can anyone else give us some advice on how to proceed? Or should we just continue with the normal outline of how to prepare the AOS packet?

Thank you in advance & best regards to you all.

Edited July 29, 2012 by Cry_Tuff

[Anh map 2,098]

My understanding is that the USC will have to file the I-130 (spouse visa petition) along with the I-485 due to the length of time since K1 entry. This process >> http://www.visajourney.com/content/i130guide2

[Cry_Tuff 0]

Thanks for the reply I had a look, and it appears that those who filed a tourist visa and are still here are who need to apply for that? We actually went through then entire K-1 Visa process for the fiance visa--and were approved. Entered as required into the U.S. and were married within the 90 day time frame as well. I have a feeling I'm going to have to consult with the immigration attorney yet again, but was hoping I might be able to avoid having to utilize one.

You must qualify to file for an I-130 in the US. Not everyone does, and in some cases doing so can be considered fraud and result in being deported and banned from re-entry into the US for a period of time. If you attempt to file and you do not qualify your legal status in the US can be placed in jeopardy. J1 Visa holders will almost always require a waiver and should consult with an immigration lawyer or the USCIS for more information. If you have any doubt, consult an immigration attorney.

If your fiance/fiancee came to the US on a tourist visa with the intent of immigration and marriage, and you are not yet married, then he/she should return to his/her home abroad, and the K-1 visa should be filed (using an I-129f) instead of the I-130 to avoid a denial, deportation, or even being banned from re-entry to the US.

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.

We were under the assumption, as well, that since he did enter LEGALLY that he would be banned from reentry if he were to go back to the UK for 10 years should he not have his Greencard first.

Edited July 29, 2012 by Cry_Tuff

[Anh map 2,098]

Thanks for the reply I had a look, and it appears that those who filed a tourist visa and are still here are who need to apply for that? We actually went through then entire K-1 Visa process for the fiance visa--and were approved. Entered as required into the U.S. and were married within the 90 day time frame as well. I have a feeling I'm going to have to consult with the immigration attorney yet again, but was hoping I might be able to avoid having to utilize one.

You must qualify to file for an I-130 in the US. Not everyone does, and in some cases doing so can be considered fraud and result in being deported and banned from re-entry into the US for a period of time. If you attempt to file and you do not qualify your legal status in the US can be placed in jeopardy. J1 Visa holders will almost always require a waiver and should consult with an immigration lawyer or the USCIS for more information. If you have any doubt, consult an immigration attorney.

If your fiance/fiancee came to the US on a tourist visa with the intent of immigration and marriage, and you are not yet married, then he/she should return to his/her home abroad, and the K-1 visa should be filed (using an I-129f) instead of the I-130 to avoid a denial, deportation, or even being banned from re-entry to the US.

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.

We were under the assumption, as well, that since he did enter LEGALLY that he would be banned from reentry if he were to go back to the UK for 10 years should he not have his Greencard first.

The link I gave you is for when both spouses are here in the US. All you did was read the warning.

From what I've seen here on VJ folks in similar circumstances edit: (K1 then did not file for adjustment within a year or so) had to follow the process that I linked to. No need for him to leave. And you are correct, if he did leave before getting the GC there would be a ban. Overstay is forgiven in your situation.

Makes sense to consult a qualified attorney. Doesn't mean that you need to use one if your circumstances are as straight forward as you describe. It's worth the $ for the peace of mind that a consult would bring.

Edited July 29, 2012 by Anh map

[Cry_Tuff 0]

...ehh..I'm on spring break--I read between the lines during the summer..haha!

Thank you for pointing that out to me!! lol

[Harpa Timsah 13,258]

It is in your best interest to file a I-130 with your AOS package. That way you can guarantee a 10-year GC in skip the Removal of Conditions step.

An AOS based on an approved I-129F petition and subsequent marriage to the petitioner within 90 days of entry to the US can only result in a 2-year Greencard, where you will have to file to remove conditions on that residency in another 2 years (and pay roughly $600). If you file the I-130 (only $420) you can get a 10-year Greencard now.

Follow the guide linked above. You are in an unusual situation, so the generic information or warning at the beginning will not pertain to you.

[Cry_Tuff 0]

Thank you! I have been going over the list and refreshing myself with what is needed. Nothing that is listed should be a problem for us to gather or obtain. That is good to know about the 10 year GC--and cheaper at that! Thanks again

[Harpa Timsah 13,258]

I should explain that what you are essentially doing by sending the I-130 with it as well (called I-130/I-485 concurrent filing) is basing the AOS off of a spousal relationship established by the I-130, not filing AOS based off a K-1 visa. Of course, the K-1 will be your legal entry, and you married the petitioner, so have fulfilled the rules of the visa. However, you will use code (A) on the I-485 and not code ©. Code A (and the I-130) can get you a 10-year GC now as explained above.

You will also need a new full medical, as the old one has expired. You need to see a USCIS-designated Civil Surgeon (can find one at uscis.gov, civil surgeon locator) for the medical. Call around and get quotes for the price; try to find one around $200 or less.

Good luck!