AOS deportation

[558900 4]

Hi,
I came to the US on a K1 visa on February 2020. We got married within the 90 days. Because of covid and lack of employment, we sent i485 on December 2020 but the petition was returned later because we stupidly forgot the check. Resent it and officially filed on February of this year. We got an RFE for proof of citizenship (even though we sent copies of passport) which we responded to.
Earlier this month, we got another RFE for my husband's proof of income (US citizen, freelance). They were asking for W2s and the like. We spoke to 2 attorneys and they both told us we could respond to the RFE ourselves without wasting legal fees. They also told me if we get rejected we could just refile.
I'm still worried and would like opinions, in the case of the second RFE's rejection, how likely it is that I will be deported since by the time I filed the AOS it was beyond 90 days. Nothing was said about filing within 90 days and they only asked that we be married within 90 days. Had we known, we would have taken a loan. It is causing me a lot of anxiety and I saw a thread (dating of 2010 but still) where the person got denied because they were out of status by the time they filed.

Edited July 30, 2021 by nox5589

[Crazy Cat 39,285]

Once a proper I-485 (accepted) has been submitted, you are granted "authorized stay" in the US until the I-485 has been either approved or denied....an RFE is neither an approval nor a denial.   Just send them what they want to answer the RFE.  

Edited July 30, 2021 by Lucky Cat

[558900 4]

Hi Lucky Cat, thank you for taking the time to respond.
We will be responding to the RFE once we print out all the paperwork.
I was curious if I am at risk of being deported in case my i485 got denied if our RFE response is not enough for uscis, especially that we filed AOS very late. I know it's just ifs and buts, but it's a scary possibility.

[payxibka 10,044]

Its not about the timing of when you filed,  it's about providing sufficient evidence to approve the application. 

[Mike E 11,723]

1 hour ago, nox5589 said:

I was curious if I am at risk of being deported in case my i485 got denied if our RFE response is not enough for uscis, especially that we filed AOS very late. I know it's just ifs and buts, but it's a scary possibility.

Assuming your I-485 is denied, you will have 33 days from the date of the denial letter to either appeal (not recommended) or file a new package (recommended; your lawyers are correct). Refilling would extend your authorized  presence. Bonus: no need to later file I-751. Anti-bonus: longer wait to file for citizenship 
 

Regarding the current case: Provided you respond to the RFE with everything being asked for and the petitioner has consistently exceeded the required income in 2021 and previous years, I’m confident you will be approved or scheduled for interview. 
 

At the interview I advise the US citizen to bring an original US birth certificate, and updated income evidence (past 3 months pay stubs, 2021 tax transcript).  

Edited July 31, 2021 by Mike E

[558900 4]

23 minutes ago, Mike E said:

Assuming your I-485 is denied, you will have 33 days from the date of the denial letter to either appeal (not recommended) or file a new package (recommended; your lawyers are correct). Refilling would extend your authorized  presence. Bonus: no need to later file I-751. Anti-bonus: longer wait to file for citizenship 
 

Regarding the current case: Provided you respond to the RFE with everything being asked for and the petitioner has consistently exceeded the required income in 2021 and previous years, I’m confident you will be approved or scheduled for interview. 
 

At the interview I advise the US citizen to bring an original US birth certificate, and updated income evidence (past 3 months pay stubs, 2021 tax transcript).  

Thank you Mike E for your time and detailed response, I truly appreciate it.

I think we will be working with a lawyer to help check our RFE response to avoid any mishaps since this is our second one and my husband's freelance status requires a lot of proof (he also filed taxes for the first time as married filing jointly, so our fault for not providing detailed proof of his income).

Forgive me for asking again for your opinion, but since my i-94 have expired by the time we filed for AOS, do you think we should have had included the i-130 form?

Edited July 31, 2021 by nox5589

[Mike E 11,723]

7 minutes ago, nox5589 said:

I think we will be working with a lawyer to help check our RFE response to avoid any mishaps since this is our second one and my husband's freelance status requires a lot of proof (he also filed taxes for the first time as married filing jointly, so our fault for not providing detailed proof of his income).

 

I completely agree with that course of action.  
 

Quote

Forgive me for asking again for your opinion, but since my i-94 have expired by the time we filed for AOS, do you think we should have had included the i-130 form?

The I-130 would buy you nothing in this case.  While it is true you now have record of unlawful presence, the I-130 wouldn’t cure that.  Currently your presence is authorized and I advise you to not break authorized presence again: USCIS forgives unauthorized presence but ICE/CBP don’t have to, or put a different way, they have been known to not forgive it.  
 

The I-130 would only be useful and necessary if you failed to marry before the I-94 expired.  

Edited July 31, 2021 by Mike E

[558900 4]

10 minutes ago, Mike E said:

 

I completely agree with that course of action.  
 

The I-130 would buy you nothing in this case.  While it is true you now have record of unlawful presence, the I-130 wouldn’t cure that.  Currently your presence is authorized and I advise you to not break authorized presence again: USCIS forgives unauthorized presence but ICE/CBP don’t have to, or put a different way, they have been known to not forgive it.  
 

The I-130 would only be useful and necessary if you failed to marry before the I-94 expired.  

I agree and will definitely be more careful in the future. Had we known, we would have acted much quicker.

Thank you so much for taking the time and energy to write detailed explanations. Your answers had been extremely helpful.

[African Zealot 1,452]

Heck even citizens have been erroneously deported. Every noncitizen is at a nonzero risk of deportation at any time. The probability is low in your case however.
 

Just go ahead and file the paperwork expeditiously. Worrying yourself accomplishes nothing 

Edited July 31, 2021 by African Zealot

[Rocio0010 5,565]

16 hours ago, nox5589 said:

Hi,
I came to the US on a K1 visa on February 2020. We got married within the 90 days. Because of covid and lack of employment, we sent i485 on December 2020 but the petition was returned later because we stupidly forgot the check. Resent it and officially filed on February of this year. We got an RFE for proof of citizenship (even though we sent copies of passport) which we responded to.
Earlier this month, we got another RFE for my husband's proof of income (US citizen, freelance). They were asking for W2s and the like. We spoke to 2 attorneys and they both told us we could respond to the RFE ourselves without wasting legal fees. They also told me if we get rejected we could just refile.
I'm still worried and would like opinions, in the case of the second RFE's rejection, how likely it is that I will be deported since by the time I filed the AOS it was beyond 90 days. Nothing was said about filing within 90 days and they only asked that we be married within 90 days. Had we known, we would have taken a loan. It is causing me a lot of anxiety and I saw a thread (dating of 2010 but still) where the person got denied because they were out of status by the time they filed.

While the risk is low, there might be some danger for not filing for AOS in time. The danger might be until you get your NOAs; because that’s your evidence of “authorized stay” should you have an unfortunate encounter with border patrol or ICE. See this thread for an example of what could go wrong: 

 

[JFH 12,189]

19 hours ago, nox5589 said:

Hi Lucky Cat, thank you for taking the time to respond.
We will be responding to the RFE once we print out all the paperwork.
I was curious if I am at risk of being deported in case my i485 got denied if our RFE response is not enough for uscis, especially that we filed AOS very late. I know it's just ifs and buts, but it's a scary possibility.

There are many, many people here illegally in this country for various reasons. Your situation does not even come close to theirs.  You were technically at risk of deportation for the time between the expiration date of the I-94 and the receipt date of your AOS filing but that’s in the past now. Once your AOS application is receipted and a receipt number generated the clock stops and you are in “authorized stay” until a decision is made on your application. Unless you are planning on breaking the law in the meantime, you’re good. 
 

Even if you hadn’t filed the AOS paperwork yet it’s very unlikely that you would be deported purely for the overstay. ICE has limited resources and they have much more serious cases to deal with than a law-abiding spouse who filed late due to financial hardship. 

Edited July 31, 2021 by JFH

[K1korean 10]

I got an RFE for my income despite being above the limit (I barely made the cutoff since I'm a grad student) but it still wasn't enough to convince them.  I had my mother do an Affidavit of Support rather than trying to fight it. I'd highly recommend that route if it's available. You can stay in the USA while the application is still active and not be in fear of deportation. An RFE is not a denial. My wife has taken three domestic flights between North Carolina and Washington as she has family over there and she has never had issues. She has flown home to SK twice (after getting the travel authorization). I'm using the Seattle office which has processing times of two years. We submitted Aug 2019, and finally got an appointment in Aug 2021. Still not over the finish line yet. In the meantime just stay up to date with the work authorization/travel permit if your application is taking that long. You should be able to get a Driver's License if you haven't already but that might depend on the state.

Edited July 31, 2021 by K1korean