I-130 still pending, Spouse B1/B2 Visitor Visa Expires in 45 days? To Extend or Not to Extend?

[Mo007 3]

If you didn't want spouse to go back to the home country, why didn't you just file I-130 and I-485 together? It makes no sense to file I-130 separately. And anytime now, you can just file I-485. Why deal with all this extension stuff?

Ok. Should I have sent the i-485 with the I-130? Or can I send it now before her visa b1/b2 visa expires in 45 days? If so, can this help her stay while her I-485 is pending?

[Mo007 3]

Another concern I have is, if I-130 gets approved while I-485 is pending, can we switch to cr-1 for fasting green card visa (as oppose to long route of I-485 adjust of status for green card)?

[cyfed 0]

Well option #1 (extension option) by the definition triggers a 240 days grace period rule. I take it that once spouse has submitted the extension, she is covered for 240 days or until she receives a decision. No?

See http://www.uscis.gov/USCIS/Resources/C1en.pdf page 3. It clearly says that the applicant who filed for extension can still be removed at any time by immigartion authority. Plus, the 240-day grace period applies to those who have employment status, not tourists.

[Mo007 3]

See http://www.uscis.gov/USCIS/Resources/C1en.pdf page 3. It clearly says that the applicant who filed for extension can still be removed at any time by immigartion authority. Plus, the 240-day grace period applies to those who have employment status, not tourists.

I agree. Thank you so much for all you shared. Truly appreciate it.

Now that extension is out of the window, we will file I-485 immediately and wait for notice of action. This will help my spouse contine to stay in the US with me. What about the I-130 that is pending? What do I do with that if it gets approved?

Thanks

[cyfed 0]

I agree. Thank you so much for all you shared. Truly appreciate it.

Now that extension is out of the window, we will file I-485 immediately and wait for notice of action. This will help my spouse contine to stay in the US with me. What about the I-130 that is pending? What do I do with that if it gets approved?

Thanks

She MUST be in a valid non-immigrant status in order to use I-485 for adjustment. If she is out of status, there is no legal basis for her to change to another legal status. That is the principle.

If she files the i-485 now, she can't leave the US without getting an advance parole. Without it, the CIS deems the i-485 application abandoned. But if she doesn't leave the US, her current status will be in jeopardy. Not a good situation in any way.

[Hypnos 6,576]

Once your wife files an I-485 then this places her into a new period of authorised stay that persists until it is finally adjudicated.

If you wish to pursue this option, follow the guide: http://www.visajourney.com/forums/index.php?autocom=custom&page=i130guide2 but in lieu of an I-130, enclose a copy of the NOA for the I-130 you already filed. The pending I-485 will then be matched up with the already-filed I-130 and will proceed as a concurrent adjustment of status case. This means that the I-130 and I-485 will be adjudicated together, so your question of the I-130 being approved early will not happen.

She MUST be in a valid non-immigrant status in order to use I-485 for adjustment. If she is out of status, there is no legal basis for her to change to another legal status.

Her husband is a US citizen; any overstay is not penalised at adjudication for immediate relatives of a US citizen, such as a spouse. As such, in this case any overstay would be effectively irrelevant.

Edited August 7, 2013 by Hypnos

[cyfed 0]

Once your wife files an I-485 then this places her into a new period of authorised stay that persists until it is finally adjudicated.

If you wish to pursue this option, follow the guide: http://www.visajourney.com/forums/index.php?autocom=custom&page=i130guide2 but in lieu of an I-130, enclose a copy of the NOA for the I-130 you already filed. The pending I-485 will then be matched up with the already-filed I-130 and will proceed as a concurrent adjustment of status case. This means that the I-130 and I-485 will be adjudicated together, so your question of the I-130 being approved early will not happen.

Her husband is a US citizen; any overstay is not penalised at adjudication for immediate relatives of a US citizen, such as a spouse. As such, in this case any overstay would be effectively irrelevant.

It seems that I-485 for immediate relative of US citizen does help with your case.

See http://www.uscis.gov/files/form/i-485instr.pdf page 2, Q10, F.1.

The rules have been relaxed quite bit. Well then, good news.

But, I hope that's the case in real-life practice.

[newacct 688]

She MUST be in a valid non-immigrant status in order to use I-485 for adjustment. If she is out of status, there is no legal basis for her to change to another legal status. That is the principle.

Not true. She's the spouse of a U.S. citizen.

[Darnell 8,478]

We narrowed my spouse's options to 3:

1. an extension on her b1/b2visitor visa, I-539 form.
2. do the K3 route, I-129F form. (which many have suggested)
3. have her go back to her home country and re-enter the US with her multiple entry visitor visa for another 6 months? (which is risky).

Not sure which of the 3 options would be best for my spouse.

Option 2 doesn't get her any time in the USA, unfortunately.

Assume for the moment that the I-129F is approved and winds its way out of USCIS into NVC .

She still requires a Consular Interview at the IV Unit in Australia.

IMO - it's a waste of time to file the extension, as USCIS knows that she could file the full AOS set on Monday, and that extension request will be denied based on what's what between you two.

----

also, IMO, go home by or before the date in the I-94. Removes a bunch of 'legal stress' ...

[Mo007 3]

Option 2 doesn't get her any time in the USA, unfortunately.

Assume for the moment that the I-129F is approved and winds its way out of USCIS into NVC .

She still requires a Consular Interview at the IV Unit in Australia.

IMO - it's a waste of time to file the extension, as USCIS knows that she could file the full AOS set on Monday, and that extension request will be denied based on what's what between you two.

----

also, IMO, go home by or before the date in the I-94. Removes a bunch of 'legal stress' ...

If she goes home, she can't return to the US with I-130 (and I-485) pending. She will be denied a re-entry. So going home also has a buch of legal stress.

[cyfed 0]

File I-485 NOW. There is no penalty for citizen's spouse. She can legally stay. Haven't you read the official I-485 instruction?

[Mo007 3]

Once your wife files an I-485 then this places her into a new period of authorised stay that persists until it is finally adjudicated.

If you wish to pursue this option, follow the guide: http://www.visajourney.com/forums/index.php?autocom=custom&page=i130guide2 but in lieu of an I-130, enclose a copy of the NOA for the I-130 you already filed. The pending I-485 will then be matched up with the already-filed I-130 and will proceed as a concurrent adjustment of status case. This means that the I-130 and I-485 will be adjudicated together, so your question of the I-130 being approved early will not happen.

So filing an I-485 now will further delay the pending I-130. Or does the pending I-130 help expedite the new I-485 to be processed faster? Which application helps which? Thanks

File I-485 NOW. There is no penalty for citizen's spouse. She can legally stay. Haven't you read the official I-485 instruction?

We are filing the I-485 today, regardless. Hope to get NOA-1 on that sometime next week. Spouse still has 45 days on her b1/b2 visa. So the pending I-485 will kick in much sooner than that.

[Darnell 8,478]

If she goes home, she can't return to the US with I-130 (and I-485) pending. She will be denied a re-entry. So going home also has a buch of legal stress.

OK - sorry, I miss things not noted previously.

Here's a suggestion.

Study GUIDE2 in the GUIDES section here.

Take the receipt notice on the I-130 , make a copy, send it plus the stuff listed in GUIDE2 (minus the I-130 stuff and fees) into USCIS soonish. Sure - it'll mean getting a medical exam, but...

IMO, if there's no prior intent at the POE, then filing for an Adjustment of Status instead of chasing a visa (of any kind) might be the route to take, at this moment.

File the rest of that stuff, nowish? Not leave the USA till green card in hand.

Go Get Em, and Good Luck !

[ah - I see Hypnos outlined the stuff already, and yer 'on the path' ]

Edited August 8, 2013 by Darnell

[CaizLurol 36]

If she goes home, she can't return to the US with I-130 (and I-485) pending. She will be denied a re-entry. So going home also has a buch of legal stress.

I would say so as well. File the I-485 with your I-130 (someone mentioned that they will match the numbers up) and all that's well ends well

Many attorneys will do free consultations over the phone. You could try contacting one just to verify. This is a very good question but I am sure they will tell you to file the I-485 to adjust her status.

[Harpa Timsah 13,258]

Wow, this thread went in circles. Follow Hypnos's advice.

If you want to do the I-485, then do it and stick to that path. The NOA1 can take up to a month, so regardless of what time she has left, decide to do that path and have her stay in the US. Once you get the NOA1 she is in a NEW period of authorized stay. Any overstay doesn't matter, as a courtesy to you, the USC.