Does the i-130 need to be approved before EAD and AP?

[ClaytonandKierra 3]

Hello-

 

I am a US citizen and my fiance and I are getting married next month and applying inside the US. I understand that I need to fill out tons of paperwork. I'm looking at the processing times and they are SCARY. In order to get EAD and AP does the i-130 need to be approved before? On what basis do they approve the EAD and AP?

 

Also, processing internally, can any of the forms be filed online?

 

TIA

K

[pushbrk 12,969]

10 hours ago, ClaytonandKierra said:

Hello-

 

I am a US citizen and my fiance and I are getting married next month and applying inside the US. I understand that I need to fill out tons of paperwork. I'm looking at the processing times and they are SCARY. In order to get EAD and AP does the i-130 need to be approved before? On what basis do they approve the EAD and AP?

 

Also, processing internally, can any of the forms be filed online?

 

TIA

K

If you married within 90 days of her arrival using the K1 visa, there is no I-130.  If you are marrying while she is here on some other visa, she is.  In that case, there is no "visa case" and you've posted in the wrong forum.  Either way, NO, the I-130 does not need to be approved before EAD and AP are issued.  It would defeat the whole purpose.

[Ryan H 3,812]

Moved from IR-1/CR-1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas forum.

[ClaytonandKierra 3]

My boyfriend came here end of December to visit me and his mom. He's here on visitor;s visa. He asked me to marry him a few week's ago and we are getting married on April 10th. SO are you saying the i130 doesn't need to be approved before issuing EAD and AP? I'm so confused...

[KAP2019 187]

1 hour ago, ClaytonandKierra said:

My boyfriend came here end of December to visit me and his mom. He's here on visitor;s visa. He asked me to marry him a few week's ago and we are getting married on April 10th. SO are you saying the i130 doesn't need to be approved before issuing EAD and AP? I'm so confused...

This doesn't answer your question, but if he entered the US with the plan to propose and marry and adjust status, that is a big red flag as he entered on a tourist visa with the intent to immigrate. Just a heads-up!

[iy2020 118]

1 hour ago, ClaytonandKierra said:

My boyfriend came here end of December to visit me and his mom. He's here on visitor;s visa. He asked me to marry him a few week's ago and we are getting married on April 10th. SO are you saying the i130 doesn't need to be approved before issuing EAD and AP? I'm so confused...

Correct, the I-130 doesn't need to be approved. The EAD/AP are interim benefits that you obtain while the AOS process is ongoing.

[Paul Hanaki 72]

Make sure you file all the forms at the same time and put in all the needed documents. That will lesson the chance of an RFE and the EAD shouldn't take as long. There are people still waiting after a year for an EAD. Also know he can't leave the country until his 131 comes thru.  Since your marriage is far from the date of his entry into the US there won't be much of a red flag. 

[Rocio0010 5,579]

9 hours ago, Paul Hanaki said:

Make sure you file all the forms at the same time and put in all the needed documents. That will lesson the chance of an RFE and the EAD shouldn't take as long. There are people still waiting after a year for an EAD. Also know he can't leave the country until his 131 comes thru.  Since your marriage is far from the date of his entry into the US there won't be much of a red flag. 

There are actually red flags. He came in December with a visitors visa. December is not so far back in time. Plus, he came with a tourist visa. The burden will be on him to prove that he didn’t intend to immigrate.

[ClaytonandKierra 3]

He came end of December with 2 weeks of clothes.  He didn't even bring enough of his prescription meds and need to find a doctor ASAP. We are getting married April 10th.  His father is sending his belongings. So no, we didn't plan to marry ahead of time.

[Rocio0010 5,579]

45 minutes ago, ClaytonandKierra said:

He came end of December with 2 weeks of clothes.  He didn't even bring enough of his prescription meds and need to find a doctor ASAP. We are getting married April 10th.  His father is sending his belongings. So no, we didn't plan to marry ahead of time.

That’s fine, I’m just saying what it might look like for immigration purposes. Now, on to your question. No, the i-130 does not need to be approved to get the EAD. The I-130 is the last step to get the green card; once you get the green card, the EAD will be void. With all that’s been going on, USCIS has been heavily backlogged, and it is currently taking somewhere between 6mos to a year to get EAD.

[ClaytonandKierra 3]

Thanks-

 

Just curious what he is allowed and not allowed to do while waiting for the EAD? Can he enroll in school anywhere? I understand he cannot work. What does everyone do while waiting for EAD and AP? His mom is the main financial support. I work too. We live with her.

[Rocio0010 5,579]

2 minutes ago, ClaytonandKierra said:

Thanks-

 

Just curious what he is allowed and not allowed to do while waiting for the EAD? Can he enroll in school anywhere? I understand he cannot work. What does everyone do while waiting for EAD and AP? His mom is the main financial support. I work too. We live with her.

Op, I am just seeing on your profile that you applied for a CR-1. I doubt it, because that’s done outside of the US. Just wanted to double check, because the process might vary slightly. 
I’m not 100% sure about studying. I would imagine that would be fine, but I’m going to let others chime in. 
Every case is different. In my case, I was an International student with an F1 status when I applied for my AOS, so I continued to study while waiting for my AOS.

I am afraid that there is not much your fiancé can do, other than wait. Maybe attend college, but like I said, I’m not 100 sure.

[Villanelle 4,122]

On 3/11/2021 at 11:05 AM, ClaytonandKierra said:

My boyfriend came here end of December to visit me and his mom. He's here on visitor;s visa. He asked me to marry him a few week's ago and we are getting married on April 10th. SO are you saying the i130 doesn't need to be approved before issuing EAD and AP? I'm so confused...

Ok so first you filled out your profile wrong, thats why you are confusing some readers. Here is the link to the guide at the top that applies to your situation. 

  For your profile you want to change it from IR/CR to one of the choices that say AOS (pending) and update that as you advance in the process. Also intent is not going to be an issue. CBP determined at the border when they let your boyfriend in that he was entering for a visit, so he is/was able to change his mind once here and decide to marry and stay. USCIS will 'honor' that determination -unless he changes his position by telling them he lied to CPB and intended on staying when he entered. You will most likely encounter some postings online from misinformed posters or blogs from attnys talking about this 30/60/90 day rule. IGNORE IT. It does not apply to you guys at all. 

 

So you guys are going to file the AOS package. You send the 130, 485, 765, 131, etc. He can not work or travel until he gets his combo card EAD. This can take anywhere from 3-9 months to get. You would have to speak to the school to see if he is able to attend or not and if so how much is it. He can not typically get any financial aid through FASFA until he has his GC. Schools also charge a higher rate if you are not a local resident of the state- which he is probably not going to be considered as such right now. As for what do people do while waiting.... well, theres plenty of posts in the K subforum about how to deal with the isolation and not having EAD/DLs. (Your process is very similar to the K except the K doesnt need to file the 130)

 

[Boiler 45,659]

Spring is nearly here, gardening?

[Paul Hanaki 72]

14 hours ago, ra0010 said:

There are actually red flags. He came in December with a visitors visa. December is not so far back in time. Plus, he came with a tourist visa. The burden will be on him to prove that he didn’t intend to immigrate.

I am not sure if you have read any other peoples timelines and stories but no coming here on a B2 visa and getting married months later is not going to raise "Red Flags" What will raise red flags is if the marriage isn't legitimate. A legitimate marriage after being here 4 months is going to be ok. A person can be prevented from coming to the US if border patrol thought they were going to stay via marriage or otherwise but after that it would be on them to prove intent not the applicant. You can come in on a B2 with zero intent to stay and then change your mind a week later and ask your current boyfriend/girlfriend to marry you.