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We decided to refile both the I-130 and the I-485. I paid all of the fees again and within a few months, my wife had her green card.

Note: During the first AOS interview, the USCIS agent asked us if we wanted my wife to take my last name. During the second interview, this option was not available and when I asked the new USCIS agent, she said that she would check but that it wasn't likely. When the green card arrived, it has her maiden name on it, just the way it was on the petition and on her Honduran passport. We decided to not fight the flip-flop.

Thanks to everyone who assisted with my inquiry. God Bless!

I hope you filed I-765 and not I-751 because I-765 is an EAD and I-751 is to remove conditions on residency (which she does not yet have).

Yes. You are correct. It was the I-765.

Thanks again to everyone who responded with help. I took the route of filing a new I-130/I-485/I-751.

Last week, we got a appointment notice for biometrics (fingerprints). My wife if fearful of taking the appointment because she thinks that ICE will be waiting for her at the appointment. I told her not to worry. Should she be worried?

Well, according to the USCIS she now has my last name - as the result of the AOS interview.

Her "legal" name (according to her Honduran passport) is her maiden name.

So, if we are re-filing as if for the first time then I should probably use her maiden name. Especially since she has no legal status in the US. I think I got it. Thanks so much!!!

Thanks jaejayC!

I think I am going to take your advice and refile everything.

One more question: All of her immigration applications had her maiden name. We never got it changed to my last name after we got married in Honduras because we would then need to get her passport changed, which takes forever in Honduras. However, during the AOS interview the officer asked us if my wife wanted to change her last name to my last name and we said yes. I noticed that on the AOS denial letter, her maiden name was no longer and she had my name. BTW, her Honduran passport and her now invalid work authorization card both have her maiden name.

When I refile everything, should I use her maiden name or my last name?

Thanks for the super quick response! You two are awwsome!!

One more question. Is the other option to not refile the I-130, wait for a deportation order, then file a petition ro review a removal order or a stay motion with the court of appeals? I hear going this route might be risky, but if granted the stay, the courts have the right to order the USCIS to approve her AOS on the spot and issue a green card after the determination. Is this true?

Greetings.

My wife is from Honduras, I am a US-born citizen.

Here is our timeline:

• Married in Honduras on May 3, 2008

• Filed the I-130 on May 19, 2008

• I-130 approved on February 3, 2009

• My wife and I had a daughter born in the US on June 28, 2010.

• Wife entered US on a K-3 visa on April 13, 2011

• We had until February 3, 2010 (one year) to file the AOS (I was unaware of this requirement. My fault.)

• We didn't file the AOS until April 11, 2012 (more than 32 months from the dates of notification that the visa was available)

• We had an AOS interview on July 16, 2012, which was the exact same day that the National Visa Center advised USCIS that my wife's case had been terminated and destroyed.

• The USCIS is saying that without an underlying petition (I-130) to support the AOS (I-485) that we interviewed for, then there an immigrant visa is no longer available to my wife.

• This decision left my wife without legal status as of September 13, 2012 and USCIS is saying that she must leave the country, although no formal order has been submitted.

• I understand that I cannot appeal this decision, but I have until October 13, 2012 to file a motion to re-open/reconsider (I-290B) or re-file the I-130 and I-485.

• My wife is home every day raising our 2-yo daughter and I travel a lot with my job. Obviously, her leaving voluntarily or involuntarily would place a significant burden on our family.

Questions:

• Should I re-file the I-130 and I-485 or file a motion to re-open/reconsider?

• If I re-file the I-130 and I-485 and my wife refuses to leave voluntarily, will that impact the decision? So, does she have to be in Honduras for the K-3 visa interview?

• If we file a motion to re-open and it’s denied, is the only option we have left is to re-file the I-130 and I-485?

• At this point, is there any way to avoid her having to leave the country?

• I already spoke to a lawyer and she recommended that we submit both the I-751 (Petition to Remove Conditions on Residence) and re-file the I-130 and I-485 -- all for a tidy sum of $5,500. I don’t understand how we can file the I-751 if her I-130 is dead. Is this an option?

• Is there any way that I can go begging to some court to grant her an immediate AOS?

• What is the best decision to make under these circumstances?