Is my spouse here legally?

[Unlockable 7,306]

9 minutes ago, KeratNY said:

I addressed a lot of this already. In this case, her B2 that she has would be all but irrelevant if she left the country and wanted to use it to return. She couldn't. They will immediately suspect she is using the B2 to come to the US and live (which would be true) and deny her. Especially from a high fraud country like Phillipines. You seem to think holding a visa guarantees admission, or that a material change wouldn't affect a visa. That is simply not true. 

No. I don't think that. Reference my earlier post below. 

 

2 hours ago, NuestraUnion said:

If she has an AOS that is already sent and she leaves then she will have abandoned that AOS. If she tries to reenter on er B2 again, she would likely be denied entry because they will see she previously attempted to AOS on a B2.

 

If you file for a spousal visa, she could use her B2 to visit during the process. But again, she will have in her file an attempt to AOS on a B2. So entrance will not be guaranteed.

 

If the AOS package is already sent then you should hear something soon. When does her alloted stay end? 

 

[Darnell 8,478]

A new period of authorized stay commences, starts, 

based on the receipt date of the NOA-1 letter that you will receive (or have received) from filing the Adjustment of Status (AOS) paperwork.  You know, the I-130+I-485+all of the other supporting forms. 

With that said, however, any 'illegal' time is automatically forgiven (no further paperwork to file, nothing more to ask for) when the green card is produced.  You've some time to wait for that one step (it's near the end). 

 

For now, I say she's GOOD IIF (if and only if) there's a receipt notice, the NOA-1 , received after filing the AOS set.  Why ? A new period of authorized stay commences, the status change is IN process and she's allowed to remain in the USA whilst the processing is being done. 

 

People have filed after B-2 visa expiry date, gotten a NOA-1 letter with a receipt date CLEARLY after the visa expiration date, and they went through with the rest of the AOS process and got a green card. 

 

IMO, she'll be fine.   Thousands of ppl each year do exactly what you two are doing, the USCIS allows for it.  Does it rankle other folk chasing CR-1 and K-1 ? Absolutely !!!  But it doesn't rankle USCIS, and that's what is important.    Expect some higher scrutiny during the paperwork processing, you might get some weird RFEs, but all is fine, again IMO. 

 

For now, she must not leave the USA if you want the AOS status change to be successful. Leaving the USA automagically abandons the AOS process, completely. 

 

2 hours ago, nj5b said:

The reason why I'm contemplating on her going home is because her visa expires tomorrow and for whatever reason I thought that USCIS receiving the AOS before her expiration date would be sufficient. I'm now worried that the NOA will get here after her expiration date and she will be considered illegal. It looks like I may have dropped the ball on a misunderstanding of the policy. I'm literally sick to my stomach right now.

 

Edited May 9, 2018 by Darnell

[MelandJason 60]

3 hours ago, nj5b said:

My wife's visa expires in two days.  I sent the paperwork and it was delivered last friday via UPS tracking.  I do understand that when the paperwork is being processed she is legal.  My concern is does the check have to be cashed by then or just received?  This scenario just played out in my mind that she might be illegal if they haven't processed my check by the time her visa expires and I may have to send her home so she doesn't violate any laws.  Couldn't find anything concrete on these specifics and decided to seek an answer from the residential experts here.

 

Thank you in advance.

Hi, I will give our experience I lost my legal status for around 3 weeks before get my NOA 1 our lawyer explain to us that I will overstay my  I-94 but that doesnt matter for the AOS with a USC, we had a 3 weeks of delate because the taxes and we decided to wait and send everything most complete way possible trying to avoid some resquest of information, I was with the same fear and I didnt want go outside the house... But here is the thing we send all on Jan 30, they recived in Feb 01, they cashed the checks in Feb 09, our lawyer got their NOA 1 in Feb 14 and us one day after (if I am wrong you can see my sign) and even that we got our NOA 1 (that you need have with you always) our PD or priority date is Feb 01; this mean if all the papers that you send are right probably your PD will be the day that they got the package and also the lawyer told us that overstayed visa for more than 6 months then you can have a ban. I cant tell you "Dont worry!" Because I have been there and some times I still have fear, but we are already doing this and of course worth it

[evapaula 230]

5 hours ago, KeratNY said:

You are wrong. If you were right, there would be no need for CR/IR/K-1 visa. Everyone would just come on a tourist visa and adjust status from within the US, which is course not what the US wants to happen. So they strictly enforce it. Take a look at this lawyer's immigration answer just for an example:

https://my-secure.justanswer.com/question/guest/256e7e5cacb547cabf0304a2bef44e0a

 

I agree that it does not matter in OP's case because she is already in the country. But you were describing if she left that she could come back on a B2. Wrong wrong wrong. 

 

 

Not that this is relevant for the OP"s case, but a tourist visa only gets cancelled once the K1/CR1 visa is approved (at the embassy level and stuck in the passport). Not before then! I certainly traveled on an existing B2 visa while my K1 was peding, and I was even granted a new B2 visa during the same period, as the first one expired. 
In the OPs case, I'm pretty sure they would deny entry and cancel her visa since at this point she overstayed. 

[KeratNY 76]

32 minutes ago, evapaula said:

Not that this is relevant for the OP"s case, but a tourist visa only gets cancelled once the K1/CR1 visa is approved (at the embassy level and stuck in the passport). Not before then! I certainly traveled on an existing B2 visa while my K1 was pending, and I was even granted a new B2 visa during the same period, as the first one expired. 

How did you convince IO that you were not coming in just to stay until you received status? If they have any doubt about that they are supposed to deny you.

[NikLR 13,220]

4 minutes ago, KeratNY said:

How did you convince IO that you were not coming in just to stay until you received status? If they have any doubt about that they are supposed to deny you.

You can provide evidence that you're employed, have bills, a lease, mortgage etc... I crossed over 3 times after marriage and twice after sending the I-130. Some Canadians cross every weekend.  People from the Ukraine and other places have been granted B2 visas while waiting for I-130's and I-129F's.  Rare yes, but it happens.  But most often if you have an existing B2 visa or are from a VWP country, you don't have any issues entering.  If you do start having issues, you have a plan like evidence of ties to a home country, short stays, appropriately packed bags etc...   Just because you chose to over stay doesn't mean everyone is going to and the CBP and IO's understand that.  If you stay on this forum long enough you'll learn that lawyers tend to mess up people's processes more than they help unless they're specialty lawyers for special situations. 

 

---

 

OP - beyond the fact that your wife's overstay wouldn't be long enough to trigger a bar, (she would need 180+ days of overstay) because you've sent the AOS package, you should wait for AP before any travel.  Any and all overstay when married to a USC is forgiven, or rather ignored.  She could be here 10 years illegally and have all of that overstay ignored.   She should not leave the USA until she receives AP at the very least. 

[A&H2018 146]

Lot of people from Canada have L1/H1B/TN visas and then start the AOS process, starting the AOS process does not kill their L1/H1B/TN visas nor why should it they dual intent visas. Same with a visitor visa if you have a plane ticket back why would the IO refuse you access?

[dazed'nconfused 14]

56 minutes ago, KeratNY said:

How did you convince IO that you were not coming in just to stay until you received status? If they have any doubt about that they are supposed to deny you.

The same way that people from VWP countries with a partner in the US do - answer questions honestly.  

I've entered the US on my ESTA for long visits (7 weeks, 11 weeks, 4 weeks and coming up another 4 week visit) multiple times in the last 2 years.  Every time they ask, I say I'm visiting my partner and if they ask further I'll give them a rundown of what we will be doing - "going to a gaming convention together", "we are doing a roadtrip to see the Liberty Bell and then visiting friends in PA", "he's going to teach me to ski!" and so on. Normally that satisfies them.  Once they asked a few more questions - proof of employment (I had an email from my boss confirming leave and also had my work ID in my bag because we have RNA tokens on them and I signed a contract saying it needs to be on my person at all times), a home to go back to (digital copy of my ongoing lease, cats, emails/sms between me and my house sitter confirming dates), financial responsibilities in my country (I can open my Utilities app so they can see the still connected gas/electric at the same address that my drivers licence says I live at, digital registration certificates for my car), and proof of funds (banking app where I can show them my current savings) as well as a return trip planned (flights and hotel booking for my overnight in LA before I exit) - the extra questions took less than 2 minutes and they didn't ask to see the proof - I had it all if they wanted it. 

Yes, getting a NEW tourist visa (or maybe ESTA I don't know since mine hasn't expired and we haven't filed yet) is probably going to be tough once there's a K-1 or CR-1 in the system, but if someone can prove that they've got significant ties to their home country (job, home/pets/kids, bills etc) AND that they're going about things the right way (by, ya know... applying for the correct visa rather than entering with the intent to AOS) then it hasn't posed a problem for a lot of people, as displayed in the threads posted above full of success stories of people with pending K1 and CR1 visas visiting their loved ones.  

 

KeratNY you seem to be in a habit of posting links from lawyers and using them as arguments against people doing things with a proven track record of working - like visiting while they have an immigrant visa in process.  While that's not always a bad thing (research is good!) you should also take everything found from lawyers websites with a grain of salt - not only are there plenty of stories on this forum (and others, non immigration related!) of lawyers messing stuff up, you can also guarantee that any information from those pages is going to be presented in such a way that a relatively simple thing is going to seem big, scary and potentially life-ruining if you do it yourself rather than engaging the services of the lawyer whose website you're looking at.  Even "specialist" lawyers get things wrong ALL THE TIME - the Estate lawyer handling the Probate request for my dad's estate did it wrong FOUR TIMES and cost us 8 months in limbo (plus 5 fees paid to the government for Probate - 4 incorrect and one FINALLY done right) - and this was a guy who's been an Estates specialist for 15 years.  

[Lemonslice 4,583]

7 hours ago, KeratNY said:

Most of those stories are visiting BEFORE an immigrant application is submitted. Once it is filed the chance drops to close to zero. You are right in that if you can provide SIGNIFICANT ties to your home country there may be a chance. But that is not the case for the OP's wife. She has been here for several months already. It will be obvious she is using her tourist visa for immigrant intent, which is never allowed (if they figure out that intent). So the very high burden of proof on proving ties to your home country MAY get a tourist visa, but certainly not from the Philippines, India, many African countries, etc. You also can't use ESTA or VWP (I think) so you have to prove it first the consulate and second the officer at the PoE. Good luck with that. Most people would prefer to adjust from inside the US than spend 9-12 months outside the country waiting, and the officers know this and will heavily scrutinize your intent. 

You're so, so wrong. Thousands of intending immigrants visit daily... On ESTA, visas or other ways.

[evapaula 230]

1 hour ago, KeratNY said:

How did you convince IO that you were not coming in just to stay until you received status? If they have any doubt about that they are supposed to deny you.

Like some people said already, i think being bluntly honest is key, and the officers are well trained to read you. 

I applied for my first US visa 2 months after I met my now-husband on Facebook. Everyone told me that I'm just asking for a refusal out right, but I took a shot. I told the IO that I'd like to meet his family, see where he lives, and get to know that part of him, and if things progressed to the point where we decided to get married, we'd definitely approach immigration the right way. The IO simply believed me, I assume. I was happy and established in a good job in Romania, so that might've helped. That 1st visa was for 1 year, multiple entries. We did end up getting engaged and applying for a K1, but then I wanted to attend my to-be sister-in-law's wedding, and that 1st B2 visa was expiring. My K1 was already at NBC. I was able to just send my passport to the embassy in the mail, with an explanation letter attached, and they gave me a 10 year visa (which I only used once before I entered on the K1). 
Again, there are no hard rules and what matters is intent. 

[KeratNY 76]

5 hours ago, A&H2018 said:

Lot of people from Canada have L1/H1B/TN visas and then start the AOS process, starting the AOS process does not kill their L1/H1B/TN visas nor why should it they dual intent visas. Same with a visitor visa if you have a plane ticket back why would the IO refuse you access?

Those are dual intent. Not relevant to this thread. They are cracking down on those using non immigrant visas to immigrate. 

[Kennycat 5]

13 hours ago, nj5b said:

My wife's visa expires in two days.  I sent the paperwork and it was delivered last friday via UPS tracking.  I do understand that when the paperwork is being processed she is legal.  My concern is does the check have to be cashed by then or just received?  This scenario just played out in my mind that she might be illegal if they haven't processed my check by the time her visa expires and I may have to send her home so she doesn't violate any laws.  Couldn't find anything concrete on these specifics and decided to seek an answer from the residential experts here.

 

Thank you in advance.

U don't need to send her home if u guys had got married.....in couples of days u should receive ur NOA1

[geowrian 22,336]

12 hours ago, KeratNY said:

No. If one were to file for a spousal visa, the chance of her getting a B2 Visa is virtually zero. A spousal visa shows immigrant intent and a tourist visa is specifically for non-immigrant intent. 

The OP's spouse already has a tourist visa. There's a massive difference between obtaining a tourist after filing the I-130 and using an existing one after filing the I-130. Usually the latter is no issue, as many, many now-immigrants can attest to.

 

12 hours ago, KeratNY said:

Even if one were to be out of status for a few weeks, there is no way she can be deported during this time. It takes time to deport someone and they will receive NOA in the meantime. So removal proceedings would never even begin in this case

It's highly unlikely, but not impossible. Once an NTA is issued for the removal proceedings, you can no longer file an I-485 with USCIS (they no longer have jurisdiction) and gain the authorized stay from it. One would need to do a CoR first, then file the I-485.

 

12 hours ago, KeratNY said:

Out of status for a few weeks doesn't matter. She should not leave. The CR-1 visa is not relevant here. 

It won't impact the I-485 as an IR of a USC, but that also doesn't necessarily mean it won't matter (i.e. in case they change their mind before AOS filing and want to do the CR-1 visa but still visit in the meantime).

 

12 hours ago, KeratNY said:

That doesn't matter. Once the beneficiary is outside the US and the spousal visa is applied for, the B2 will be automatically canceled, and the chance of getting another one is virtually zero (actually it is supposed to be zero but someone could make a mistake). This is a very basic fact that you cannot get a non-immigrant visa while an immigrant application is pending. Visas do not automatically guarantee entry, and if something meaningful changes, that visa is subject to being cancelled. This is what would happen here. 

Outright incorrect. Using an existing, valid B-2 while waiting for the process to go through is perfectly allowable and many people do so every day.

Obtaining a tourist visa after the I-130 is filed is very difficult to show non-immigrant intent, but it not prohibited and some very lucky people have had success. One is allowed to want to immigrant eventually and still not have immigrant intent when entering on a tourist visa. This is most commonly the case in family preference-based immigration where there are years of waiting for the PD to become current first, but is not strictly limited to that.

Edited May 10, 2018 by geowrian

[KeratNY 76]

23 minutes ago, geowrian said:

The OP's spouse already has a tourist visa. There's a massive difference between obtaining a tourist after filing the I-130 and using an existing one after filing the I-130. Usually the latter is no issue, as many, many now-immigrants can attest to.

 

It's highly unlikely, but not impossible. Once an NTA is issued for the removal proceedings, you can no longer file an I-485 with USCIS (they no longer have jurisdiction) and gain the authorized stay from it. One would need to do a CoR first, then file the I-485.

 

It won't impact the I-485 as an IR of a USC, but that also doesn't necessarily mean it won't matter (i.e. in case they change their mind before AOS filing and want to do the CR-1 visa but still visit in the meantime).

 

Outright incorrect. Using an existing, valid B-2 while waiting for the process to go through is perfectly allowable and many people do so every day.

Obtaining a tourist visa after the I-130 is filed is very difficult to show non-immigrant intent, but it not prohibited and some very lucky people have had success. One is allowed to want to immigrant eventually and still not have immigrant intent when entering on a tourist visa. This is most commonly the case in family preference-based immigration where there are years of waiting for the PD to become current first, but is not strictly limited to that.

Hold on hold on. Ok so this woman from the Philippines (high fraud country)  who has married a USC and demonstrated immigrant intent both through her petition and 6 months in the country, can leave the US and waltz back into the country no problem because she has an existing B2? So the IO either doesnt know he's supposed to deny non immigrant visas with immigrant intent, or he's stupid and can't figure it out, or he doesn't care or what? 

[geowrian 22,336]

20 minutes ago, KeratNY said:

Hold on hold on. Ok so this woman from the Philippines (high fraud country)  who has married a USC and demonstrated immigrant intent both through her petition and 6 months in the country, can leave the US and waltz back into the country no problem because she has an existing B2? So the IO either doesnt know he's supposed to deny non immigrant visas with immigrant intent, or he's stupid and can't figure it out, or he doesn't care or what? 

I never said anything like that. I said what you said before was wrong regarding that nobody can use a B-2 after filing for an immigrant visa or immigrant petition, and that an existing B-2 is cancelled upon filing. Neither of those was correct.