Is my lawyer right? We are frustrated

[Ivankz 0]

Hello. 

 

Thanks for all the forum members, I got a lot of usefull information here. But I tried to search some info regardless my situation, and couldn't find it.

 

Our story:

I have a green card.

We are filed I-130 petition for my wife on December 1st of 2015. 

My wife have a tourist visa since 2014, so she is been able to go back home and come to visit me couple times here in US.

Since our plan was to get her AOS when she is INSIDE in US, our lawyer told us to look at this chart:    B.  DATES FOR FILING FAMILY-SPONSORED
     VISA APPLICATIONS    from https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html website

So the last time she entered USA with a tourist visa was in September 2016. Her tourist visa expired in October 2016. On February 2017 she had to leave the country, but we filed for Visitor Visa Extension (still didn't get decision from USCIS, so she is still legally here) because we hoped that our date in Visa Bulletin will move and our lawyer told us, that my wife will get the visa faster if she is inside the US. 

But the date in this chart  B.  DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS  stuck for like 7 months.

Finally, in the update of May 2017 visa bulletin, the date became 08 APR 2016. 

So we went to the lawyer, filled the AOS application, but in a couple days we got a phone call, that they can not send our AOS application, because now we need to look at different chart at different website -  www.uscis.gov/visabulletininfo

And on that website the say: "You must use the Final Action Dates chart in the Department of State Visa Bulletin for June 2017 " which is 15AUG2015

My lawyer said, that now they changed the rules and we need to look at that chart.

My question is - is she is right or playing games? Is there really a difference in the process and dates when you present inside the USA or outside?

Also, my wife is planning to go back to her country end of June, because we don't want to violate any visa laws. But her tourist visa is already expired, so she will not be able to come back to US. Is there any way she can get back to USA after she left? Maybe apply for another tourist visa? Or she will have to wait for her PD to become current when she is outside of the USA?

 

Is there anybody with I-130 PD in December 2015? Are you guys still waiting for filing AOS too?

 

Thank you in advance for your answers!

 

    

 

 

 

 

[Lemonslice 4,553]

Are you a US citizen?

[arken 4,197]

Your lawyer is right. USCIS uses either Table A or Table B on a monthly basis depending upon the number of application they get each month. Since USCIS is using Final Action table for month of June, your wife's PD is not current to be eligible to file for AOS. 

If one is in the US, AOS is filed based on Table A or B USCIS uses for a given month. 

If one is outside the US, one has to go through NVC process and visa interview based on Table A for any month. 

 

Your wife can stay in the US till she hears about her visitor visa extension application from USCIS.. If she goes back outside US, she has to apply for a visitor visa to come back soon but it will likely be denied because of pending immigration application. She then has to go through NVC process and immigrant visa interview at the US embassy in her country which will happen once her PD become current. In that case, ff, in your i130 application, you have checked that she will be filing for AOS, then you have to inform USCIS that she will be going through consular processing so that they will send you approved case to NVC and then NVC will contact you for required fee and documents submission. 

[teh_diver 0]

I believe you cannot file AOS when you are on visitor visa. It is considered as a cheating or fraud. Looks like your attorney was misguiding you. 

[Mollie09 1,543]

8 hours ago, teh_diver said:

I believe you cannot file AOS when you are on visitor visa. It is considered as a cheating or fraud. Looks like your attorney was misguiding you. 

100% wrong.

AOS cannot be filed if visa isn't available since OP isn't a US citizen.

[Transborderwife 4,666]

8 hours ago, teh_diver said:

I believe you cannot file AOS when you are on visitor visa. It is considered as a cheating or fraud. Looks like your attorney was misguiding you. 

AOS in country is perfectly acceptable for immediate relatives of a USC after entry 

[Rick_ES_USA 13]

OP is not a USC (he is LPR)  therefor I think AOS in country is not possible for his wife.  If your lawyer did not warn you about this ... he made a mistake.  And now that your wife has overstayed her tourist visa, I think things will complicate!  Please inform yourself a little bit more about this situation and possible 3 - 10 years ban for overstaying visa.

Edited May 17, 2017 by Rick_ES_USA

[Mollie09 1,543]

2 minutes ago, Rick_ES_USA said:

OP is not a USC (he is LPR)  there for I think AOS in country is not possible for his wife.  If your lawyer did not warn you about this ... he made a mistake.

AOS is possible if a visa number is available and if his wife is currently in legal status.

[Mollie09 1,543]

7 minutes ago, Rick_ES_USA said:

OP is not a USC (he is LPR)  therefor I think AOS in country is not possible for his wife.  If your lawyer did not warn you about this ... he made a mistake.  And now that your wife has overstayed her tourist visa, I think things will complicate!  Please inform yourself a little bit more about this situation and possible 3 - 10 years ban for overstaying visa.

 

Wife hasn't overstayed, she filed a timely extension and is waiting for a response. An overstay of less than 180 days does not automatically trigger a ban.

But if her extension is denied, she can't AOS anymore.

[Ivankz 0]

12 hours ago, arken said:

Your lawyer is right. USCIS uses either Table A or Table B on a monthly basis depending upon the number of application they get each month. Since USCIS is using Final Action table for month of June, your wife's PD is not current to be eligible to file for AOS. 

If one is in the US, AOS is filed based on Table A or B USCIS uses for a given month. 

If one is outside the US, one has to go through NVC process and visa interview based on Table A for any month. 

 

Your wife can stay in the US till she hears about her visitor visa extension application from USCIS.. If she goes back outside US, she has to apply for a visitor visa to come back soon but it will likely be denied because of pending immigration application. She then has to go through NVC process and immigrant visa interview at the US embassy in her country which will happen once her PD become current. In that case, ff, in your i130 application, you have checked that she will be filing for AOS, then you have to inform USCIS that she will be going through consular processing so that they will send you approved case to NVC and then NVC will contact you for required fee and documents submission. 

 

Thank you for your reply. Now everything is clear to me.

 

So now I see, that it is not even worth to go to apply for another visitor visa, when she is back to her country. It is better to just wait for her PD to become current for outside of US.

 

What do you think, will she get any question at her interview from NVC or us council in her country about previous visa extension?

[Ivankz 0]

1 hour ago, Mollie09 said:

 

Wife hasn't overstayed, she filed a timely extension and is waiting for a response. An overstay of less than 180 days does not automatically trigger a ban.

But if her extension is denied, she can't AOS anymore.

So do we risk to lose the case if her extension will get denied?

 

If she leave the country before USCIS make a decision (and before her 180 days of overstay) and then USCIS for some reason will deny her extension (when she is already outside of the US), will this be a problem for AOS?

Edited May 17, 2017 by Ivankz

[IcezMan_IcezLady 582]

1 hour ago, Mollie09 said:

AOS is possible if a visa number is available and if his wife is currently in legal status.

OP is not USC so wife cant file AOS

[IcezMan_IcezLady 582]

1 hour ago, Mollie09 said:

 

Wife hasn't overstayed, she filed a timely extension and is waiting for a response. An overstay of less than 180 days does not automatically trigger a ban.

But if her extension is denied, she can't AOS anymore.

Unless OP is a citizen, his wife won't qualify to AOS regardless.

[IcezMan_IcezLady 582]

Let your wife return in a timely manner and make sure not to overstay.

I think it will be a plus for her at her interview to show that she returned.

You are not a USC so your beneficiary cannot AOS when comes on a non-immigrant visa.

[arken 4,197]

5 minutes ago, IcezMan_IcezLady said:

Unless OP is a citizen, his wife won't qualify to AOS regardless.

His wife can file for AOS if her PD is current regardless of OP's citizenship.