I -130 question

[jmana 2]

I have a friend who got married a few months ago to a Russian woman.   She had come here on a tourist visa and they had applied for AOS but he sent $65 too much and they kicked it back.  In the meantime she had a family emergency and had to go back home immediately.  My friend was under the impression that he could no longer file the i -485 and called USCIS and the person told him the best option would be to just send the i-130 in, and made it seem like it would be a fast process, maybe 5 months.  I told him he should have sent the same package back since the original postmark date was before she left, but he said the application hadn't been put in the system because they sent it back.   Is he right that his way wouldn't take long?  Am I right that he could have still filed for AOS and sent the advance parole document to her to get back home? 

[Merrytooth 5,748]

So the wife went home without AOS and Advance Parole I-131 being filed?

If yes, then your friend has to file I-130 and the wife has to go through consular process in her home country for CR1 / IR1 visa.

Edited December 31, 2016 by Merrytooth

[Transborderwife 4,666]

it's not a fast process.  one year to 16 months or so.

[JFH 12,190]

Since she left before the petition was even logged into the system he must now apply for a spouse visa for her to return. The process will take about a year. It will take around 6 months for the I-130 to be processed but that's just one part. There is more to the spouse visa process than that. 

 

She can visit him during the process if her tourist visa is still valid. 

[JFH 12,190]

*~*~*moved from "bringing family members of USCs" to "CR-1 spouse visa process and procedures"*~*~*

[geowrian 22,337]

If she left the country, then she's not able to return without a visa. Looks like the CR-1 (I-130 petition) will be needed. Expect 12-18 months for processing and approval.

Even if you sent the AOS packet w/ AP, she's not allowed to leave the country until the AP is approved. Leaving the country without an approved AP is an abandonment of the application.

Edited December 31, 2016 by geowrian

[geowrian 22,337]

18 minutes ago, JFH said:

She can visit him during the process if her tourist visa is still valid. 

Sorry for going off on a tangent, but can you explain this piece to me for reference? I realize it's possible for her to visit using a tourist visa, but couldn't she also get denied entry at the POE due to having a recorded immigrant intent (i.e. I-130 pending)? I'm curious to know if this is possible.

[jmana 2]

37 minutes ago, geowrian said:

If she left the country, then she's not able to return without a visa. Looks like the CR-1 (I-130 petition) will be needed. Expect 12-18 months for processing and approval.

Even if you sent the AOS packet w/ AP, she's not allowed to leave the country until the AP is approved. Leaving the country without an approved AP is an abandonment of the application.

But I've heard of people filing for AOS with AP and not waiting till the AP document is in hand before leaving, and the spouse mails it before they come home.   I realize this is against the rules, but how would anyone know?  

[geowrian 22,337]

16 minutes ago, jmana said:

But I've heard of people filing for AOS with AP and not waiting till the AP document is in hand before leaving, and the spouse mails it before they come home.   I realize this is against the rules, but how would anyone know?  

I'm not sure who that is that you're referring to or their circumstances. Do you have a source I can reference? How would they know? Because you need the AP document at the POE in order to re-enter the US. And they should automatically have a record of you leaving the US. The dates wouldn't match either way.

Edit: Here's another thread covering the AP issue that I think is a good reference.

 

Edited December 31, 2016 by geowrian

[JFH 12,190]

49 minutes ago, geowrian said:

Sorry for going off on a tangent, but can you explain this piece to me for reference? I realize it's possible for her to visit using a tourist visa, but couldn't she also get denied entry at the POE due to having a recorded immigrant intent (i.e. I-130 pending)? I'm curious to know if this is possible.

I visited my husband twice with a pending I-130. CBP has no way of knowing you have filed an I-130 (unless you tell them). Obviously any entry is at the discretion of the CBP officer on the day. I was successfully admitted on both occasions. I had a good track record of visiting (over 40 visits and never stayed longer than 3 weeks, most visits were between 5 and 10 days), brought evidence of my ties to the UK (letter from employer confirming date I was due back at work) and I was lucky. I am from a VWP country though. 

[JFH 12,190]

31 minutes ago, jmana said:

But I've heard of people filing for AOS with AP and not waiting till the AP document is in hand before leaving, and the spouse mails it before they come home.   I realize this is against the rules, but how would anyone know?  

How anyone knows or whether anyone would find out is irrelevant. It's against the rules. People get away with robbing banks. Doesn't mean we should all try it. 

[geowrian 22,337]

35 minutes ago, jmana said:

But I've heard of people filing for AOS with AP and not waiting till the AP document is in hand before leaving, and the spouse mails it before they come home.   I realize this is against the rules, but how would anyone know?  

Or did you mean that they applied for AP and were approved, but just didn't receive the document in the mail yet? Hmm...idk the legality of that but it doesn't raise any alarms off-hand. It's just risky IMHO (i.e. what if it gets lost in the mail?), but doesn't sound illegal. That said, that's still a 90 day lead time after filing for AP...likely long after they cashed the check and started processing the I-485.

Edited December 31, 2016 by geowrian

[geowrian 22,337]

3 minutes ago, JFH said:

I visited my husband twice with a pending I-130. CBP has no way of knowing you have filed an I-130 (unless you tell them). Obviously any entry is at the discretion of the CBP officer on the day. I was successfully admitted on both occasions. I had a good track record of visiting (over 40 visits and never stayed longer than 3 weeks, most visits were between 5 and 10 days), brought evidence of my ties to the UK (letter from employer confirming date I was due back at work) and I was lucky. I am from a VWP country though. 

Ah ok. Thanks for the information!

[jmana 2]

50 minutes ago, geowrian said:

Or did you mean that they applied for AP and were approved, but just didn't receive the document in the mail yet? Hmm...idk the legality of that but it doesn't raise any alarms off-hand. It's just risky IMHO (i.e. what if it gets lost in the mail?), but doesn't sound illegal. That said, that's still a 90 day lead time after filing for AP...likely long after they cashed the check and started processing the I-485.

He applied for the AOS and AP before she left,  they didn't know they could make an appointment to get an emergency AP.   The application was returned because of the money issue and he was afraid they'd get in trouble for resending it in after she left, even though initially it was sent in before.   But I don't think the USCIS would even know she's gone. Heck my ex wife and I got divorced and she went home a month before her AOS appointment letter came in the mail, and it was a year after she went home before the denial letter came, and she wasn't denied for abandoning her AOS application, she was denied for not showing up to the interview, so I think they still to this day don't know she went home! 

[geowrian 22,337]

6 minutes ago, jmana said:

He applied for the AOS and AP before she left,  they didn't know they could make an appointment to get an emergency AP.   The application was returned because of the money issue and he was afraid they'd get in trouble for resending it in after she left, even though initially it was sent in before.   But I don't think the USCIS would even know she's gone. Heck my ex wife and I got divorced and she went home a month before her AOS appointment letter came in the mail, and it was a year after she went home before the denial letter came, and she wasn't denied for abandoning her AOS application, she was denied for not showing up to the interview, so I think they still to this day don't know she went home! 

Okay, but even if he paid the right amount and they started processing the AOS application, it wouldn't have mattered because AP wouldn't have been accepted prior to her leaving.

Well yes, it's always possible that USCIS could miss something, but I wouldn't count on it. Either way, it's illegal to do so and is not an activity to be discussed in VJ.