jubbadubba

Hi All,

Wondering to hear some experience and advice on the i-485 interview.

Main question: I've been reading about some kind of magic "red stamp" people get at the end of the interview that serves as a temporary green card.   What is this, and is it common?  What did we get?

Our (spouse and my) interview went quite smoothly.  We answered the questions, had a convivial conversation with the agent, etc.   At the end he said that USCIS now legally has 120 days to make a decision but we should expect it sooner.   He wrote in red ink in spouse's passport "485 pending", along with his name and agent number, the date, the facility, etc.

Did we not get the "temporary green card" stamp?  Should we be wary of traveling until a green card comes in the mail?  We asked the agent if it was now OK to leave,  and he said something like "even with a green card I can't legally advise you to leave and try to re-enter, since they can prevent you coming in for any reason, any time."   True, but not helpful.

We've been waiting almost a year to leave the country and visit her family in Canada.  Paperwork sent last July.   "Ready to schedule interview" lasted 9 months with us.  Starting to get a little ridiculous.

Thanks!

 

Thanks, this is helpful. Sounds like getting a joint sponsor is the safe bet.

I just dug a little deeper into the AFM (now in the process of being replaced by the USCIS Policy Manual)... here is what USCIS policy actually says on the subject (my emphases):

From https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-2872/0-0-0-3055.html

AFM 20.5 Enforceable Affidavits



"[sponsor must be] Able to demonstrate the means to maintain an income of at least 125% of the Federal Poverty Guidelines for the sponsor’s household size, including the immigrants being sponsored or previously sponsored. A sponsor on active duty in the U.S. Armed Forces, other than active duty for training, who is petitioning for a spouse or child must only demonstrate the means to maintain an income equal to at least 100% of the Federal Poverty Guidelines. Assets of the sponsor, the intending immigrant, or both may be used to demonstrate this requirement. "

it continues...

"When determining the sufficiency of a Form I-864, USCIS shall first consider the sponsor’s anticipated income for the year the sponsor signed Form I-864. Thus, during the initial evidence review, USCIS shall as a general rule determine the sufficiency of a Form I-864 based on the sponsor’s reasonably anticipated household income for the year in which the sponsor signed the Form I-864. "


"IMPORTANT: If the income is at least 125% (or 100% as applicable) of the governing Poverty Guideline in the Form I-864P, Poverty Guidelines, from the year in which the Form I-864 was filed, the Form I-864 is sufficient. "


exception (not sufficient when):

"The most recent income tax return, the anticipated household income listed for the year the sponsor signed the Form I-864, and the evidence for the income for the year of filing all show an income that is less than 125% (or 100% as applicable) of the governing Poverty Guideline for the year the Form I-864 was filed"



On evidence of job and employment letters:



"Pay stub(s) showing income for the most recent 6 months and letters from all current employers are no longer required as initial evidence. The applicant, however, may submit either or both of these items (1) in response to a request for additional evidence (RFE), or (2) with a Form I-864 if the applicant believes doing so would help establish that the sponsor meets the governing income/assets threshold. If submitted, letters from current employers should show dates of employment, the nature of the job, wage s or salary earned, number of hours/weeks worked, and prospects for future employment and advancement. It should be sufficient for the employer to say that the employment is of indefinite duration or words of similar effect. Promises of future employment are not required. "


So, they are supposed to consider only current income-- this is very explicit -- but it's unclear what the adjudication process for determining whether said income is sufficient or not actually entails. There is language pertaining to "6 months"-- but no claim that this is necessary and/or even sufficient. It just asks for evidence, at which point it seems to leave it entirely to administrative discretion. This is probably where the adjudicator can just be opinionated over how serious the new job letter looks, or... you know, any other ways of being picky about immigrants.

Right, I did read that too--

It says "You MAY also provide income for the previous six months." Nothing about whether 5 months is insufficient, etc. Nothing about whether previous years taxes are considered first.

It also says "you may include a recent letter from your employer, ... indicating your annual salary." That, I definitely have. Is it enough?

I suppose these ambiguities are what one hires a lawyer for?

"For USCIS to take it into account, they need 6+ months at present job, usually."

Thanks-- is this written somewhere, or anecdotal?

Quick clarification on sponsor income! (I'm the sponsor for a household of two)

My 2014 tax return = $20,900 = OK!

My 2015 tax return = $18,900 = NO GOOD!

My current salaried employment, started in July 2016, with a large university = $60,000/yr

Will proof of my current employment and income suffice? Even if the most recent tax return was not? Do I need to satisfy BOTH of these conditions? We were sent an RFE because my 2015 tax return was too low... we have not yet shown proof of my current income, however.

Are a couple paystubs and a letter from my employer enough? or are we going to need a joint sponsor...

Thank you!

I believe you are looking at the Foreign Affairs Manual, not the Adjudicator's Field Manual.

RIGHT. Sorry. Here's the text in the AFM that references that part of the FAM (my bold for emphasis)

https://cliniclegal.org/sites/default/files/ADJUDICATORS%20FIELD%20MANUAL.pdf

The 30/60 rule is actually in the field adjudicators manual. There is a procedure here for how it should be applied, but it's seldom used.

Back in the late 90's, there was a period where they were catching physicians who would enter on Tn status and proceed with employment sponsored green cards right away. I don't think they could do much for immediate relative categories though.

Here's that passage in the Adjudicator's Field Manual (note that these paragraphs are talking about nonimmigrant violations specifically on a B-type visa):

_____________________________________________________________________________

(3) (U) Inconsistent Conduct Within 30 Days of Entry: If an alien violates his or her nonimmigrant status in a manner described in 9 FAM 302.9-4(B)(3) paragraph g(2) within 30 days of entry, you may presume that the applicant misrepresented his or her intention in seeking a visa or entry. For a finding of an inadmissibility for inconsistent conduct within 30 days of entry, you must request an AO from CA/VO/L/A.

(4) (U) After 30 Days But Within 60 Days: If an alien violates his or her nonimmigrant status more than 30 days but less than 60 days after entry into the United States, no presumption of misrepresentation arises. However, if the facts in the case give you reasonable belief that the alien misrepresented his or her intent, then you must give the alien the opportunity to present countervailing evidence. If you do not find such evidence to be persuasive, you must request an AO from CA/VO/L/A. (See 9 FAM 302.9-4©(2)).

(5) (U) After 60 Days: If an alien violates his or her nonimmigrant status more than 60 days after admission into the United States, the Department does not consider such conduct alone to constitute a basis for an INA 212(a)(6)©(i) inadmissibility.

___________________________________________________________________________________

seems like it's not entirely a myth, but like you say probably not rigorously applied. might still be a good guideline?

Yes don't leave the country until you at least get the AP (or better yet the temp GC). Once you have filed for AOS, technically your TN isn't viewed as active, however, INS has never changed this and never done anything to de-activate a TN when applying for AOS. So you can still work without issues for the entire TN duration, which in your case is so much more time than you need as the EAD doesn't take that long to come in after you apply for AOS.

Hope this sums things up pretty much.

Thanks, everybody summed it up very well.

So it seems like two things are going on at once-- once you apply for AOS as a spouse from within the country, you become provisionally allowed to remain in the USA (without getting a new job) until your EAD comes. In the case that you were TN, your status is still good to let you work at that same employer until you trigger one of the conditions that ends it-- leaving, job hunting, finishing AOS etc.

Several people have mentioned to make sure your TN doesn't end in the middle of your AOS pending process. This is not a risk in our case-- but out of curiosity, is this a warning just so people don't risk losing their employment? Or does a lapsed TN in the middle of AOS pending suddenly invalidate your AOS application?

TN is a non-immigrant visa and if you enter with immigrant intent you can be denied at the border. 30/60 rule is a myth. You can keep working on your TN but not leave the country while AOS is pending (until AP is in hand). Since TN is a long-term status, you are unlikely to have any trouble entering but they can deny you for immigrant intent, so best to skip this upcoming trip.

Skip the trip even if we are not yet married, have a valid TN for unlimited re-entry, and have not yet prepared documents or filed for AOS? The plan was to file for AOS upon re-entering on the TN. The only way they would have any demonstration of intent is if they have mind-reading devices?

When you have I-485 pending, you are allowed to stay in the US regardless of whether you have status or not. Some people describe the situation where you have I-485 pending and no status as "AOS status" or something like that as a layman's description, but it's not actually a "status".

GOTCHA. thanks for the clarification.

One more thing: is that 30/60 suspicion rule-of-thumb applicable to re-entries on a TN, or just first entry?

I.E. If we take a week-long trip to Canada with a valid TN, reenter on that TN, and apply for AOS 3 days later, is that kosher?

OK, but I've heard

"After that (your non-immigrant status expiring) if you do not renew (your non-immigrant status), it will automatically change to I-485 pending status."

Did someone make that up?

Thanks, OK.

Re: overstay. Does that mean regardless of AOS or TN overruling, someone on a TN could simply stop working (commencing an overstay) and then file for AOS?

and the two scenarios are either that

(1) AOS is granted and overstay is forgiven, or

(2) AOS is denied and your TN is no longer good anyway because you've demonstrated intent to immigrate.

Thanks, I reported.

I understand the conflicting reports over whether it remains valid-- the consensus seems to be that the TN is still provisionally valid assuming you don't

1. leave the country and reenter
2. file an I9 with another employer after getting EAD
3. have your AOS fully adjudicated

That is half my question-- and it seems to suggest that once you file for AOS, you could also be NOT working until EAD since you are in AOS-pending status. But I haven't read that explicitly anywhere. There's also possibly the situation that not working amounts to an overstay which is forgiven under consideration of AOS, but I haven't heard that either.

quick follow-up question:

Does the 30/60 rule for waiting after a TN to file for AOS still good advice for *any* reentry to the USA, or just for the initial entry in which the TN was issued?

TN was issued 1.5 years ago, but right now we'd like to travel to Canada for a week--since once we start AOS we won't be able to leave for a while--and file AOS just after returning. Is this legit?

Hi All,

Thanks for the amazing resource you've built here. It has provided me and my partner enormous clarity to the process of immigrating.

I have read several threads about the process of applying for AOS while on a TN visa for a Canadian citizen-- sorry if this is trodding familiar ground, but I need a little more clarity on one issue:

Must one continue/not continue to work at the TN-sponsor employer through some part the AOS process? Specifically, between filing AOS and receiving EAD?

Our situation is thus:

1. Canadian on TN visa which is good for another 1.5 years.

2. Has been residing in USA for 5 years all on valid statuses, no overstays.

3. Marrying a USA citizen mid-June 2016

4. Moving to a different USA city July 1 2016, and possibly away from current TN employer.

5. Not leaving the USA for at least 6 months after initial filing for AOS

This sponsor-employer may or may not be able to continue to offer employment once we move. So, my partner would be not working and essentially just waiting for the EAD. Is this OK? If the same employer does offer work during the AOS process, is it OK for my partner to work there before receiving EAD? What can and can't we do with work one we have declared intention for that adjustment of status, provided that we stay in the USA?

Thank you!