Entered the US on VWP. I-130 was approved. What Are Repercussions For Not Filing I-130 & I-485 Concurrently?

[TineCW 1]

We are a gay couple. He is a US citizen and I am a Dutch citizen. We met one another in March 2017 via a dating website. We had spent passionate 2.5 months interacting with one another via the Internet before he invited me to the United States for a  visit. 

 

I came to the USA on the Visa Waiver Program. I didn't intend to stay in the US longer than one month on my first visit and had a return flight ticket. Then one week into my stay with my partner in the US we realized that we were destined for one another and that we would like to be united asap. 

 

On the ninth day of my arrival in Oregon, we got married. 33 days after our marriage my husband applied to USCIS with a Petition For Alien Relative (form I-130). From what we understood then we had a choice to file for a green card concurrently with Form I-130 or separately at a later date. We chose to file Adjustment of Status after I-130 would get approved. I-130 got approved by USCIS without any problem in exactly eight months and now we are in a process of applying for a green card. 

 

What remains an unanswered question to me is what is USCIS' stance on people who enter the United States on the Visa Waiver Program and marry here so quickly like we did. Does the 90-day rule apply to this category of people as well? 

 

Also, my partner filed a Petition For Alien Relative during the 90 day period permitted by the VWP but we didn't file Adjustment Of Status concurrently with I-130, for a year I've been living in the US without a lawful status waiting for the approval of I-130. Is it still considered an overstay if only I-130 was filed first and I-485 we file one year later?
   

Edited May 22, 2018 by TineCW

[Roel 7,191]

Nvm.

Edited May 22, 2018 by Roel

[TineCW 1]

Yes, we filed only a Petition for Alien Relative (form i-130) because we had a choice to file I-485 together with I-130 or file it at a later date. Also, we wanted to file a joint tax return with the IRS in order to include it in our green card application; obviously it takes time. 

[Jojo92122 1,924]

You do not have a problem.  

Immigrant intent is irrelevant (unless you lied to enter the US) once you passed CBP, marry a USC, and filed for AOS.  

[Crazy Cat 39,389]

Have you filed Adjustment of Status yet?

[TineCW 1]

What is not clear to me is - since I entered the US on the VWP that allows only 90 days of stay, and we filed only I-130, is a case like this considered an overstay? 

Edited May 22, 2018 by TineCW

[Crazy Cat 39,389]

1 minute ago, TineCW said:

What is not clear to me is - since I entered the US on the VWP that allows only 90 days of stay, and we filed only I-130, is a case like this considered an overstay? 

Absolutely.......you are out of status until you file I-485......at which time you will have "authorized stay" status.

[Jojo92122 1,924]

5 minutes ago, TineCW said:

What is not clear to me is - since I entered the US on the VWP that allows only 90 days of stay, and we filed only I-130, is a case like this considered an overstay? 

Yes, you overstayed because you did not file the I-485 within the 90 days of your authorized stay.  However, it does not matter if you overstayed or not.  Once the I-485 was/is filed based on marriage to a US citizen, any overstay becomes irrelevant.  Repeating this - you do not have a problem.

Edited May 22, 2018 by Jojo92122

[Crazy Cat 39,389]

1 minute ago, Jojo92122 said:

Yes, you overstayed because you did not file the I-485 within the 90 days of your authorized stay.  However, it does not matter if you overstayed or not.  Once the I-485 was filed based on marriage to a US citizen, any overstay became irrelevant.  Repeating this - you do not have a problem.

He hasn't filed the I-485 yet.....so he is out of status and subject to deportation, imo.

Edited May 22, 2018 by missileman

[mcdull 474]

6 minutes ago, TineCW said:

What is not clear to me is - since I entered the US on the VWP that allows only 90 days of stay, and we filed only I-130, is a case like this considered an overstay? 

Yes, because you didn't file I485 concurrently.

 

I485 is requesting an adjustment of your status.

 

 

 

Edited May 22, 2018 by mcdull

[TineCW 1]

Thank you! Makes sense. I've just had an immigration medical exam are we are ready to file I-485. 

[mcdull 474]

2 minutes ago, TineCW said:

Thank you! Makes sense. I've just had an immigration medical exam are we are ready to file I-485. 

don't forget to also file for AP and EAD.

[TineCW 1]

You are free to file a joint tax return if you apply for an ITIN number with the IRS. ITIN is not an SSN. It is issued approximately in two months. 

[Crazy Cat 39,389]

Do you have the approval for the I-130?  You should submit the NOA along with the I-485.

[TineCW 1]

10 minutes ago, missileman said:

He hasn't filed the I-485 yet.....so he is out of status and subject to deportation, imo.

I've found an answer here. Thank you!

 

"A foreign national is barred from adjustment of status if the foreign national is in an unlawful immigration status on the date of filing the adjustment application. This bar to adjustment does not apply to: 

•Immediate relatives;"

 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter3.html