Bruce Herrington

This case is a mess. The I-130 requires choosing either adjustment of status location (#61 page eight) OR Consulate location (#62 page 8). To change from one to the other requires filing a I-824 after the I-130 is approved. Filing I-485 won't work because he is out of status. Part of the inital evidence required to be submited with a I-485 is proof of legal status from US entry until filing the i-485. Below is from page 11 of I-485 instructions. My advice is go home, withdraw the current I-130, and refile a I-130 showing consular processing. 

2021 USCIS Petition Results https://www.uscis.gov/sites/default/files/document/data/Quarterly_All_Forms_FY2021Q4.pdf

You need to apply for new green card ASAP. Naurilzation can't happen when you are in the US out of status. Forget the Naturalization until she dicides to live in the USfor 5 years. Everytime she leaves the US the risk of being denied re-entry increases.

4 hours ago, B&C2017 said:

Thank you so much for your response! I appreciate that.

Well, this is where it will get complicated 🙂

 

But first of all:

- I thought each I-130 requires a I-864 (but fee only needs to be paid once)?

- I also thought that the forms are supposed to reflect the current state and not the intended state in the future (once we move there)?

 

So basically my USC husband, our USC daughter, his stepson (my son) and I will all be moving to the US at the same time. We will be living with parents until we figure out what neighborhood we want to move to.

 

1. The purpose of the I-864 and supporting documents is to prove that the sponsor or co-sponsor is willing and capable for supporting all dependents and inmmigrants once they arrive in the US.  If you read the I-864 as you fill it out and answer the questions truthfully, you will realize the you and your son must be included. The attached picture shows Part 3  # 29 which is what is asked for  In Household size Part 5 #1

2.  Again a I-864 requires ALL immigrants the sponsor intends to sponsor to be shown, so 1 I-864 covers both you and your son.  The Foriegn affairs manual used by NVC and Embassy instructs officers to only require a signed I-864 for the "Principal Applicant" which is you. For 'Accompanying Dependants" traveling with "Principal Applicant" a photo copy is acceptable. (because all immigrants are included) I included a screen shot proving this in the above response.

3. Living in the same house as the Father in law means he fills out i-864A instead of I-864. Part 5 is still the same. The only thing that could change things is if your brother in law was claimed on your father inlaws  current tax return as a dependant.  If the brother was claimed Part 5 #5 would be 1 instead of 0 and the total #8 would be 5.

Once your actualy fill out the form and read the instructions for each part, this will all make more sense. It really isn't complicated.

12 minutes ago, B&C2017 said:

Just one more question:

My father-in-law easily qualifies for the 125% himself. Do we really need the additional paperwork (I-864A) for my husbands mom? What is the benefit of that?

No I-864a for grandma is required if grandpa qualifies himself. Brother is over 21 so no longer a legal dependant. State law decides ages at 18-21.

14 hours ago, B&C2017 said:

 

 

Since we‘re hoping to get our petition approved soon, we‘re starting to look into what things we need during the NVC process.

 

Since my husband and I both live in Switzerland and he‘s currently studying, we‘ll need to have a joint sponsor which will be his dad. 
 

Now we‘re wondering, who all needs to fill out an I-864? Only my husband (primary sponsor) and his dad (joint sponsor), or also his mother (married to his dad and the two have one household). His dad covers the 125% by himself easily.
 

Also: Will each one of them have to fill out a form for me (the spouse) as well as for my son (stepson)? Or just one form for the two of us?

 

If one per person, I assume we write  1 where it asks „Persons you are sponsoring in this affidavit“? 
And then how are the household members calculated? We thought that for my form, I‘d be the person sponsored, so 1. 

- 1 my husband

- Wife doesn‘t need to be listed again since sponsored (?)

- 1 our daughter (US Citizen) as dependent child

But what is with my stepson? It asks for persons NOT sponsored in the Affidavit. So would he be entered as dependent child as well?

basically we‘re a four people household including the two beneficiaries - me and my son.

 

And how would my father in law calculate?

Only his wife lives in his household, but then my husbands brother is still a dependent child as he‘s in college (he‘s over 21 and lives 4h away though). So I guess he‘d write himself, his wife and one dependent child, right?

Thank you all for the help! 

 

First of all it makes a difference wether the plan is to live with your husbands parents, (household menbers fill out I-864a) or in a home of your own. On your husbands I-864 he will show 2 immagrants, 0 for spouse , and 1 for daughter. You only need 1 signed I-864 and 1 photocopy, and only 1 copy of supporting documents if you and your son will interview and travel together entering the US.  If traveling seperatly then 2 signed i-864s with supporting documents will be required. (ref: Bottom of page at fam.state.gov/fam/09FAM/09FAM060114.html) If your father in law is not a planned house hold member then his household size is 4 also. Grandpa, Grandma, You,  your son.

1 hour ago, HRQX said:

Reminder that NVC follows the DOS FAM. That image above is from the USCIS PM, not the DOS FAM. The info in the DOS FAM is straightforward: https://fam.state.gov/fam/09FAM/09FAM060114.html

Good point. All of the below is from the Dos FAM. True is says "the date of lawful admission for permanent residence may be used as the date of automatic acquisition" But  "May" doesn't mean will or should. It also says "sufficient evidence that the child and parents in fact will be residing in the United States once the child is admitted" and in this case there is not indacation the the father will be coming or is already here. NVC has never made any public charge decisions. They made sure all documents were submitted including a I-864, I-864ez, or I-864w.  Now they have to look at evidence, read and understand the manuaI and make a decision to require the I-864 or not. This is new territory thar became effective Feb 24, 2020.. I have never seen a I-130 case get through NVC without a I-864, I-864ez, or I-864w before. I'm not saying it can't happen, I'm saying it "may not" happen.  If NVC dosn't cooperate the mother can solve the problem by coming to the states on the visa waiver program, get a job, domicile, and a joint sponsor then complete the I-864 like most I-130 petitioners do. I hope for her sake it does work without filling a I-864.

9 minutes ago, SusieQQQ said:

In my opinion you are confusing two related but separate issues, the use or obsolescence  of i864W is not germane to the question. 

Getting past NVC is germane.

11 minutes ago, SusieQQQ said:

Because this is how these cases always work.  The mother will have demonstrated proof of intent to reestablish domicile for him to get the visa in the first place. If they accept that to issue the visa, then it is equivalent to accepting that the child will be living with the mother in the US.
 

 

 

You may be right but how many times  has this happened to since Feb 24th 2020 when the I-864w was obolished and the manuals re-written with conflicting instructions?  You used to get past NVC with the I-864w,  now this  "may" work and "may" not, in my opinion.

41 minutes ago, SusieQQQ said:

What do you mean he won’t qualify? If he gets an immigrant visa he will meet the requirements of INA320 on entry, again assuming the mother has legal custody.

One of the requirements for Automatic citizenship is "The child is residing in the United States" (with a footnot refering to #5) #5 refers yo to the definion in chapter 2. Chapter says "Actual dwelling place in fact, without intent".  Now that you know what the manual says, How are you going to convince NVC that the child is residing in the US at a home he has never steped foot in? 

38 minutes ago, HRQX said:

I now found the FAM change made in February 2020: https://fam.state.gov/fam/09FAM/09FAM060114.html "Form I-864W Eliminated"

Looks like NVC now enters "a case note indicating that the applicant is not required to submit an affidavit of support."

I don't see how this will help in the case. If you read the whole paragraph above you quote, the child doesn't qualify because he will not become a citizen upon entry to the US.

The biggest hurdle I see is getting the child a Sweedish passport with the embassy closed. The childs father must agree to the child getting a passport. Once the child has a passport. The mother has 2 options. She can file online for N-600K or I-130.  For #1, N-600k takes 6 to 24 months. The mother isn't required the have physical presence in the US if a grandparent has at least 5 years, 2 after age 14. The OP said the grandfather spent the "first 23-24 years" in the US so the grandfather can satisfy the phisical presence requirement. The next hurdle is biometics which hopfully USCIS will allow it to be performed at the sweedish embassy. If not it will require at round trip to the USA using the visa waiver program. It's possible the interview and biometrics can both be done within the 90 day window the visa waiver is valid for.  Either way after biometrics and or interview the child returns to sweeden to wait the nauralzation certificate and apply at the US embassy for a US passport. (If biometrics can't be done in Sweeden it may take 1 round trip for biometrics and 1 round trip fot interview.)  As long as the intent is to return to Sweeden after biometrics/interview, there is no violation of the visa waiver program.  #2 file I-130, takes 6-16 months, but to be approved the mother at least will have to return to the US to establish domicile and have a Joint or Co-sponsor.  The child can again accompany her on the visa waiver program. Proof of Domicile isn't needed unit NVC stage so It would work to after petition is approved,  get a round trip 90 day visit ticket to the US, get a job, get a lease agreement (even if with parents to live with them) drivers license. then return within 90 days for the childs interview. The I-864w mentioned is a obsete form no longer available. (even the link provided has "achive" in it, not a link to a current website) The screen shot below comes from page 7 of N-600kk instructions. uscis.gov/n-600k 

17 hours ago, Edddie&Beatrice said:

My spouse added me to his stocks as a beneficiary can I put this on question 8c on DS 5540? 

 

NO! Beneficiary means it's yours only if the spouse dies. 

On 2/25/2020 at 10:44 AM, boggsjd said:

Does this lack of information hurt approval chances? I'm really nervous that it might not look "official" enough to USCIS, but with us living separately many things like bank accounts/property have never really been an issue. 

You need to add notorized Affidavits from family and friends stating they have knowlege of your on going relationship. I-130 instructions page 7 below: 

On 2/25/2020 at 4:07 PM, MrMikeM said:

I mailed in my I-130 and has been received I am at 4 months waiting for approval or denial. I am trying to establish if i can be the sole Sponsor or if I need a Joint Sponsor. My wife is Thai and we have been married since 2014. From 2015 to March 2019 i was living in Thailand. Living in America now.  I started working in May 2019 and from May to December 2019 I made 37,800$ which is on par with the poverty  2019 requirements for a family of 5 at 37,700.

 

Things I am worried about:

I did not work i Thailand so i have no tax return for the most 3 recent years but will have my tax return for 2019.

I did not work for my employer for a full year yet.

Will they take into account that I met poverty requirement under a year and if I send them my pay stubs as well will that be sufficient.

Can my wife add any assets that she has in Thailand.

 

Also on a side note: When I sent the i-130 the attended place we were planning was in NY.  But a couple weeks ago one of her friends in Cali  has a job offer for her  with a high salary.  Can I use that as supplement for  income? Also anyway she can work after getting approved for 130 and before  the whole process finishes and she gets her green card?

 

 

On 2/25/2020 at 2:15 PM, RudelCraig said:

Read the attached. 

 

If you applied for the CR1 (I-130) BEFORE 24 Feb 2020 then I do not believe you need to be worried about the public charge rule. This is how I understand it and is my view. I am not a legal or immigration fundi, only giving my opinion and sharing knowledge. 

Public-Charge-Screening-Tool-2-24-ver.pdf 570.86 kB · 34 downloads

Your view is not supported and contradicts the facts. Anybody going to an interview on or after Feb 24th 2020, should have the DS-5540 filled out incase they are asked for it.  

8 hours ago, Matildathulin said:

Hi everybody! I am sorry if I'm making a duplicate thread - I tried searching for an answer but could not find one. Therefore I am reaching out to you

 

So, I am one of those people who are sending in my AOS package after February 24th. I have heard rumors and read on the USCIS website that there might be a change in fees regarding the AOS process. As of now the fee for AOS is $1,225 and the I-765 and I-131 for free if you send them in along with the AOS. I have read what the USCIS are saying about this on their website, but it seems like the fees are still the same as before. Are they though? Or have I misunderstood something here?

 

Thank you in advance! Have a great weekend.

The fees most likely will go up soon but haven't done so yet. What changed Feb 24th was the public charge law that now requires Form I-944 be submited with the i-485 https://www.uscis.gov/i-944

Just now, NikLR said:

Sure I can.  Have you looked through the ROC forum anytime recently. 

USCIS posts policy in the Forums that contradicts Policy on there website?

11 hours ago, NikLR said:

You can apply before the divorce is finalized but when the card is 90 days within the expiration.  It's normal. They RFE for the divorce decree. They will not deny outright for a missing divorce decree if you apply at the appropriate time. 

You can't support that claim with any USCIS policy.  The fact is, It could go either way.  https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-1067/0-0-0-1318.html

2 minutes ago, NikLR said:

@Bruce Herrington

Extreme hardship only needs to be proven in the case where the other 4 do not apply.  Each numerical point is completely separate.  You can apply with any ONE or combination of them.   

I agree but if 1 applied, no divorce would be pending, 2 cant work because divorce isn't final, 3, requires being battered, 4 requires a parent involved. 

12 minutes ago, missileman said:

I think we all agree that waiting until you have the final decree is the best course of action........However, I would file with a waiver before my Green Card expired......even if I didn't have the final decree.  Your thoughts, @Bruce Herrington?

He has only been in the US 11 months and a divorce already filed. I would follow the instructions for the I-751. Asking for a waiver will only be fruitful if he qualifies for a waiver, otherwise filing is a waste of money.

8 minutes ago, missileman said:

I disagree.......the OP can file, then respond to the RFE......or he can wait until final decree....his choice.

https://www.uscis.gov/sites/default/files/files/nativedocuments/USCIS_Policy_Update_on_Issuing_RFEs_and_NOIDs.pdf

2 minutes ago, MelloFrenchMan said:

Yes but you can still submit it if your case is pending, as sometimes it takes a long time.

True but ignoring the instructions is reason for denial. Have you read the instructions?

Just now, missileman said:

I disagree.......the OP can file, then respond to the RFE......or he can wait until final decree....his choice.

OR!!!!!!!!! The petition can be denied, fee kept. If people ignore istructions they deserve to be denied. There is no requirement for USCIS to ever issue a RFE for any reason.

Just now, missileman said:

#2

Requires divorce to be final. OP says divorce pending so dosen't apply