Pending 130 need adjustment advice

[LadyJLeague 1]

Mother in law has a pending 130 by my husband USC.  Will be sending in an adjustment of status application as well (485).  She is visiting the US on her tourist visa since July and visitor status expired in January.  Should I be sending in any other documentation for adjustment of status application?

[Timona 3,977]

1. When was the I-130 filed? 

2. Was it filed when she was in or outside US?

 

[LadyJLeague 1]

On 5/25/2021 at 8:26 PM, Timona said:

1. When was the I-130 filed? 

2. Was it filed when she was in or outside US?

 

It was filed April 2020 and she was not present, since then the 130 has been accepted and she has been in the US since November, so 8 months now.  Two months past recommended vida stay.  The 139 was granted last week and I am gonna send in adjustment of status but not sure if I need to send regular 485

[Timona 3,977]

That is not how it works. Sorry.

 

You will have to start a fresh since she's now here. You cannot file an I-130 for Consular processing, come to US, overstay and then want to continue with the process while in the US. She will have to go back home to continue with the process since it was Consular. She now has an overstay and if she decided to go back and continue with the process at the embassy, she may run into problems.

 

To avoid all this, she'll have to start afresh with the process now that she's in the US. File all papers at the same time. Let her not attempt to leave the US before she gets advanced parole. Follow the below guides.

 

And lastly, use a money order. I cannot stress this enough. USCIS and CC payments are not good friends.

 

Try filing as soon as you can because being an overstay, she can run it on law enforcement and things can get murky. There is a thread here this week of this happening to someone. 

 

 

[SusieQQQ 11,585]

1 hour ago, Timona said:

That is not how it works. Sorry.

 

You will have to start a fresh since she's now here. You cannot file an I-130 for Consular processing, come to US, overstay and then want to continue with the process while in the US. She will have to go back home to continue with the process since it was Consular. She now has an overstay and if she decided to go back and continue with the process at the embassy, she may run into problems.

 

To avoid all this, she'll have to start afresh with the process now that she's in the US. File all papers at the same time. Let her not attempt to leave the US before she gets advanced parole. Follow the below guides.

 

And lastly, use a money order. I cannot stress this enough. USCIS and CC payments are not good friends.

 

Try filing as soon as you can because being an overstay, she can run it on law enforcement and things can get murky. There is a thread here this week of this happening to someone. 

 

 

IR5 can adjust from overstay without repercussions but yes must understand limitations of the process.

 

agree re credit card payments, another forum I am on a bunch of people are getting CC rejections even when telling their card companies its authorized, from different CCs.

 

 

Edited June 5, 2021 by SusieQQQ

[Timona 3,977]

1 hour ago, SusieQQQ said:

IR5 can adjust from overstay without repercussions but yes must understand limitations of the process.

 

agree re credit card payments, another forum I am on a bunch of people are getting CC rejections even when telling their card companies its authorized, from different CCs.

 

 

 

Yes IR5 can adjust from overstay BUT by filing afresh. 

 

However, look at OP's situation. They did I-130 before MIL came over. She's now here, overstayed and OP wanted to do AOS based off of that I-130 (by sending in I-485 - basically). That, I don't think it's possible. 

 

They'll have to start afresh with new I-130..

Edited June 5, 2021 by Timona

[iy2020 117]

18 minutes ago, Timona said:

 

Yes IR5 can adjust from overstay BUT by filing afresh. 

 

However, look at OP's situation. They did I-130 before MIL came over. She's now here, overstayed and OP wanted to do AOS based off of that I-130 (by sending in I-485 - basically). That, I don't think it's possible. 

 

They'll have to start afresh with new I-130..

A number of people in the AOS from work/student/tourist visa forum are in similar situations (I-130 already filed for consular processing when they came to visit the US without intent with a tourist visa and then decided to adjust), and didn’t need to file a new I-130. So it is possible. 

Edited June 5, 2021 by iy2020

[Timona 3,977]

13 minutes ago, iy2020 said:

A number of people in the AOS from work/student/tourist visa forum are in similar situations (I-130 already filed for consular processing when they came to visit the US without intent with a tourist visa and then decided to adjust), and didn’t need to file a new I-130. So it is possible. 

 

Really? I'd love to read about this. Any link? 

 

You may be misunderstanding the process. 

 

Let's talk student for example....Your parents filed an I-130 for you and you're over 21 years. You get tourist visa and come to US...There's no way you're gonna adjust if your PD is not current. And I'm pretty sure your PD cannot be current within max 6 months authorized stay. 

 

Let's talk a spouse of USC who filed I-130 and then wife later obtained tourist visa, came to the US and overstayed. Yes, she can adjust immediately as she's direct relative of USC and not subject to limitations. HOWEVER, she has to abandon the previously filed I-130 and start a fresh in the US. 

 

Read OP story well.

@Lucky Cat need some help here

Edited June 5, 2021 by Timona

[Crazy Cat 39,826]

I-130s are not process dependent.  They only establish the relationship between petitioner and beneficiary, not the continuing process.  The I-797 showing the I-130 has been submitted previously would suffice when submitting the I-485, imho.  I don't think a new I-130 is needed in this situation.

Edited June 5, 2021 by Lucky Cat

[iy2020 117]

1 minute ago, Timona said:

 

Really? I'd love to read about this. Any link? 

 

You may be misunderstanding the process. 

 

Let's talk student for example....Your parents filed an I-130 for you and you're over 21 years. You get tourist visa and come to US...There's no way you're gonna adjust if your PD is not current. And I'm pretty sure your PD cannot be current within max 6 months authorized stay. 

 

Let's talk a spouse of USC who filed I-130 and then wife later obtained tourist visa, came to the US and overstayed. Yes, she can adjust immediately as she's direct relative of USC and not subject to limitations. HOWEVER, she has to abandon the previously filed I-130 and start a fresh in the US. 

 

Read OP story well.

I understood correctly. The example I had in mind was about spouses, I just mentioned the work/student visas because that’s the full name of the forum. 

Here you go if you want an example. A spouse who started their immigration journey via consular processing, then visited the US (without intent), then switched to AOS. 
 

As you can see from her other post, she didn’t send a new I-130 with her AOS package. 

There’s more examples in the forum of people already approved, but I’ll let you locate those if you are still interested in the subject. 

[Timona 3,977]

1 hour ago, iy2020 said:

I understood correctly. The example I had in mind was about spouses, I just mentioned the work/student visas because that’s the full name of the forum. 

Here you go if you want an example. A spouse who started their immigration journey via consular processing, then visited the US (without intent), then switched to AOS. 
 

As you can see from her other post, she didn’t send a new I-130 with her AOS package. 

There’s more examples in the forum of people already approved, but I’ll let you locate those if you are still interested in the subject. 

 

I went through this link and there's only one person who did that. However, you do realize cashing and receiving receipts doesn't matter much? Basically cashed checks just means you paid right fee for the form. USCIS cashes checks and can later send you a rejection notice. I  doubt if the posters there will successfully AOS based on what they did. 

 

I'll start a thread to see what others say. It's good to learn from each other, though my money still remains where it is.

[Timona 3,977]

1 hour ago, Lucky Cat said:

I-130s are not process dependent.  They only establish the relationship between petitioner and beneficiary, not the continuing process.  The I-797 showing the I-130 has been submitted previously would suffice when submitting the I-485, imho.  I don't think a new I-130 is needed in this situation.

 

I understand and acknowledge this. However, would the bolded still remain same if the I-130 was done at Consulate and now the beneficiary is in US, overstayed and wants to do AOS in the US by piggyridding on the Consular I-130 without starting afresh with new I-130? This is my question 

 

I know you can continue a process by submitting I-485, BUT if the initial I-130 was submitted while in US. I don't think I can submit I-130 in Kenya, come over on B2 then switch to AOS by continuing the process through I-485 WITHOUT filing a new I-130. That is the question...or can I? If that would be the case, a lot of spouses would be doing this. ......Just file the I-130 at Consulate, come over on B2 and then I'll submit I-485 to continue the process. Voila, I've circumvented the process. 

Edited June 5, 2021 by Timona

[iy2020 117]

9 minutes ago, Timona said:

 

I went through this link and there's only one person who did that. However, you do realize cashing and receiving receipts doesn't matter much? Basically cashed checks just means you paid right fee for the form. USCIS cashes checks and can later send you a rejection notice. I  doubt if the posters there will successfully AOS based on what they did. 

 

I'll start a thread to see what others say. It's good to learn from each other, though my money still remains where it is.

Yes, it’s only one person. You asked for an example, and so I gave you one.

 

And yes, I know that this person’s process isn’t complete (she’s gotten her EAD so far, if I’m not mistaken). But (as someone who’s been reading posts in those forums for a while) I definitely have read about people successfully AOSing with a similar pathway. Some had to ask for their I-130 file to be transferred stateside, for others it was done automatically without them needing to contact anyone about transferring. 

Hopefully you get a response to your thread you deem worthy of your standards. 

 

[Timona 3,977]

1 minute ago, iy2020 said:

Hopefully you get a response to your thread you deem worthy of your standards. 

 

 

You really didn't need to go that route.

This is a learning forum. Learning never ceases.

 

There are many things I know that you don't and vice-versa. 

[iy2020 117]

1 minute ago, Timona said:

 

You really didn't need to go that route.

This is a learning forum. Learning never ceases.

 

There are many things I know that you don't and vice-versa. 

I’m going to end this here because I don’t want to further spam OPs post. I agree, learning never ceases. That’s why I think it’s unadvisable to say things with such a definite tone (like “that’s not how it works, sorry”) when in the end one might not be correct.