Sm1smom

Agree, with the release of the April VB, F2A will no longer be current from April. F2A category was current as at the time my response was posted.

Op - If your wife is already in the USA and her authorized stay has not expired, she is eligible to file for AOS. The F2A Family sponsored visa category is current, so yes you/she can concurrently file both I-130 and I-485 now. I don’t get why some in this forum continue to make the blanket statement of only the spouse of a USC is eligible to file for AOS. That is absolutely not true. As long as the spouse of a LPR was legally admitted into the US, their authorized stay has not expired, and the visa category is current, (and of course the decision to file for AOS was made after their admission to the US), the spouse of a LPR is AOS eligible. The USCIS Manual debunks this myth of the spouse of a LPR not being eligible to file for AOS as it lists the relatives of a LPR as one of the categories eligible to file for AOS: Noncitizens eligible for adjustment of status generally may apply based on one of the following immigrant categories or basis for adjustment: Other relative of a U.S. citizen or relative of a lawful permanent resident under a family-based preference category; [3] [^ 3] This category includes the following family-based preference immigrant classifications: unmarried sons and daughters, 21 years of age and older, of U.S. citizens; spouses and unmarried children, under 21 years of age, of lawful permanent residents; unmarried sons and daughters, 21 years of age and older, of lawful permanent residents; married sons and daughters of U.S. citizens; and brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age or older). See INA 203(a). Yes, maintaining a valid status while the AOS application is pending is recommended, it is NOT a required condition for AOS approval. This is recommended as it ensures one has a valid fall back status if the AOS application is denied for some other (not related to falling out of status following AOS filing). This shouldn’t be a source of concern IMO, if there’s no glaring reason for the AOS to be denied. You however need to be aware your wife will not be able to work or depart from the US until after her I-765 (for EAD) and I-131 (for AP) have been approved, these can take several months after filing to get approved. If she departs from the US without an approved AP while her AOS application is pending, the application will be deemed abandoned and subsequently denied.

Some embassies do require it, while for some, it depends on how a DV selectee is perceived. Per 9 FAM 302.8, DV selectees may be required to submit an I-134: (U) Use of Form I-134, Affidavit of Support: (a) (U) Because INA 212(a)(4)(C) and INA 213A require the use of Form I-864 for so many classes of immigrants, the use of Form I-134 has been reduced considerably. Nevertheless, there still are circumstances when Form I-134 will be beneficial. This affidavit, submitted by the applicant at your request, is not legally binding on the sponsor and should not be accorded the same weight as Form I-864. Form I-134 should be considered one form of evidence in conjunction with the other forms of evidence mentioned below. (b) (U) If any of the following applicants need an Affidavit of Support to meet the public charge requirement, they must use Form I-134, as they are not authorized to use Form I-864: (i) (U) Returning residents (SBs); (ii) (U) Diversity visa applicants (DVs); and (iii) (U) Fiancé(e)s (K-1s or K-3s).

I’m not aware of the DOS stating anywhere that form I-134 is not really a requirement considering there’s an expectation for selectees to be able to demonstrate they’re unlikely to become a public charge in the US. An I-134 is one of the documents that can be used to demonstrate self sufficiency, so embassies (such as yours) therefore proactively require it. My understanding is even if your cousin has not listed their spouse as a dependent on their IRS tax filings, there’s no problem with not listing them on the I-134 in that case.

He probably made the recommendation about remaining in status until the AOS application gets adjudicated in the off chance the application gets denied for some other reason (outside of being out of status), being in status ensures the applicant is able to legally remain in the US following the AOS denial and probably re-file (if they’re able to address the basis of the denial). As long as OP’s spouse filed for AOS before I-94 expiration, the application will not be denied for being out of status at the time the application gets adjudicated.

OP - echoing what a few other responders already stated above. Since your mom is already back in the US, withdraw the pending I-485 and file a new one. The pending I-485 will eventually be deemed abandoned and subsequently denied, so you might as well withdraw it niw and file a new one. And this time around, ensure your mom does not depart from the US until after I-485 approval.

Because of the fact that you withdrew your pending AOS application, your overstay dates back to when your I-94 expired. That makes the OOS well over 3 years, not 2.5 years. The overstay between when your I-94 expired and when you filed for AOS wouldn’t have mattered because you filed as the spouse of a USC if you hadn’t withdrawn the I-485 and the petition was approved. The fact about the pending petition becomes irrelevant due to the withdrawn petition and therefore the OOS period dates back to the I-94 expiration date.

No, USCIS did not make a mistake by saying you were lawfully present. Being lawfully present does not equate to NOT being out of status. It is possible to be lawfully present and out of status at the same time. You were deemed lawfully present because you were lawfully admitted into the US. You did not enter the country illegally, hence the note about your being lawfully present. You however were out of status in view of the fact that you overstayed your authorized stay as shown on your I-94 when you were admitted into the country. You therefore were out of status from Sept. 2015 until Feb. 2020, which is over 3 years of being OOS, that means you’re facing a 10 year bar (effective following your departure) from the US.

Speaking as someone with a deep understanding of DV based processing, I say to the OP 1. You’re stressing over a none issue. 2. You do not need a lawyer for this. In fact, most selectees do not need the assistance of any lawyer, be it a US based or none-US based attorney. The process is simple and straightforward enough, regardless of DV being time limited.

You can’t take envelope as it is to the POE if it contains her passport considering she can’t board the plane without presenting her passport to the airline. So if the passport wasn’t returned in a separate envelope, you’ll need to open the envelope from DHL in that case.

Including the medical report is recommended should in case they want to approve the application without an interview. You however may decide to send your AOS package without the medical report and wait to be issued with a RFE or take it along with you to your interview when you get to that stage. Personally, I would go with the option of including the medical report.

Yes, send clear legible copies. Your originals will not be returned to you if you send those.

OP, your parents do not have to leave the US and wait for the I-130 approval. Just send in the rest of the forms with the I-130 receipt as already answered by a couple of other members above, and your parents can remain in the US to complete the process.

My response is probably rather to the OP, but for the benefit of other filers who may find themselves in a similar situation, you do not need to include a new I-693. You only need to include the new I-485 and send back everything as is (minus the rejected old I-485 of course).

Citizenship is irrelevant to the eligibility criteria, it is the country of birth that matters.

I believe I already clearly answered this question in a previous post. May I suggest you go back to page 1 of this thread and re-read my previous response?

This is like an attempt at comparing apples and oranges. The submitted DV entry is a record, yes. It does not signify a demonstrated immigrant intent which the DS260, which is the visa application a selectee wishing to process their DV selection subsequently submits. Same way being a DV selectee does not demonstrate an immigrant intent. Let’s not mix up terminologies nor confuse others needlessly. The submitted entry is not a visa application. It’s as simple as that.

A DV entry submission is not a visa application. OP, yes the embassy/consulate will have access and are able to see/compare information from previous entry submissions with the current one, and the subsequent information you will be providing on the DS260 form as as a result of your DV selection. So depending on what the discrepancy is, it may or may not impact the DV selection.

There is statutory marriage conducted at the marriage registry in Nigeria. This is equivalent to a court marriage over there as in once the statutory registry marriage has been conducted, the union can only be dissolved by the State High Court

I think this is like trying to put the cart before the horse at this point. May I suggest you focus on getting the O-1A and being in that status first before trying to figure out AOS related issues? The process is dynamic, whatever the current processing time for an AP or EAD card is now may no longer be applicable by the time you get to that stage.

Goodness gracious! It honestly seems to me like you did not grasp precisely what has been discussed so far as against claiming people are suggesting something shady for the OP to engage in (which would be a violation of this site’s TOS by the way). Facts of the matter here: 1. Canadian citizens generally do not need to be issued with a visa from an embassy in order to be admitted into the US in a non-immigrant status, with the exception of a few noted categories. 2. Canadian citizens (outside of the few exception categories) basically present their Canadian passports (without a US visa) and the applicable supporting documents (in the case of a work related admission request) at the POE when seeking admission into the US. 3. OP is a Canadian citizen already in the US in a B2 status. 4. OP’s potential employer has filed an I-129 for an O visa for the OP. 5. Upon approval of the I-129, OP can file for a COS from B2 to O1A status from within the US (assuming their current status has not expired), nothing shady in that (although a waste of resources IMO considering the amount of money and time it will take for the COS approval as I’m not sure if the same I-129 can be used to request a COS for the OP - when OP can simply do 6 below 👇) 6. OP can decide to depart from the US, on their return they present the approved I-129 and Canadian passport at the POE to seek admission back to the US in O1A status. OP does not need to visit an embassy to obtain an O1A visa as a Canadian citizen. 7. Upon returning to the US in O1A status, should the OP decide to file for AOS because they are already based in the US, they are eligible to do so. There’s is absolutely no reason for someone who is already on a dual intent status (even if limited dual-intent) to depart from the US and go process CP when they are eligible to file for AOS.

Correct. OP will also need to have an approved EAD in place in order for them to continue working upon being paroled back into the US.

I’m guessing OP meant they were admitted into the US on B2 status, and not necessarily that they have an actual B2 visa stamp issued by an embassy/consulate in their passport, unless of course the OP is not a Canadian citizen as indicated. Again, terminology mixup IMHO.

OP can initiate a COS following the I-129 approval, I believe. The approval notice will automatically switch the OP from B2 to O1A. The I-797A should come with a new I-94 evidencing their new status. It turns out the OP didn’t know the difference between adjustment of status and change of status, they mixed up the terminologies, in addition to not understanding the process - surely the OP can be forgiven for that, considering the lack of understanding is what made them post and ask their question in this forum.

As a Canadian citizen, OP does not need to apply for a visa at a consulate after an approved I-129. If the OP is outside the US after the I-129, approval, OP goes to the POE with the approved I-129 and seek admission right there.