S2N

In theory an I-130 is forever as all it does is establish a non-discretionary right for an USC or LPR to sign an I-864 if they meet a clear legal standard. At the same time, the discretion of the consulate is virtually absolute and with extremely limited options of appeal (and even then it’s not really an appeal, but more of asking the local visa unit nicely to call Washington.) If they want a new I-130, you probably could fight it. But it’d also probably be quicker to just file a new one than fight it.

My understanding is they’d have to reapply for the I-130. It’d be another 15 months at least until a new visa could be issued. The ideal in these circumstances is to stall at NVC. That wasn’t done so here we are. In my opinion the least bad of all the options is to fly to the U.S., get the IR-1 endorsed/activate the green card, fly back to Australia to tie up loose ends, then fly back to the U.S. in 3-4 months. The other option is to apply for the REP and stay in the U.S. until biometrics are done, which can take a few weeks/months. None of the options are really what OP wants.

Re-entry permit requires doing biometrics in the U.S. That’d take a few weeks, which doesn’t seem to be in line with what OP wants. Without knowing the specifics, entering and then 3-4 months at home seems more practical based on what they’ve said. Also worth raising the elephant in the room that it looks like OP’s spouse doesn’t actually have immigrant intent. I hinted at it above, but that’s grounds for CBP to deny entry. Obviously no one wants to go through the IR-1 process twice, but this is something they should have consulted about before progressing to the consulate stage. Re-entry permits aren’t really designed for people to circumvent the normal expectations of someone entering the first time. Obviously they’re free to apply and if it works that’s great. But the most straightforward route seems to be actually to immigrate.

Yeah, it depends on where the funding is coming from, but a lot of the government can keep working throughout a shutdown. If you’re really board you can go to the Part II of the FAST Book and look up the type of fund something is. Generally only items in general funds shut down. USCIS looks to have some general funds, but obviously much more are special funds.

I would also avoid proactively volunteering that you haven’t decided a return date to CBP on initial entry. Obviously tell them the truth if asked, but they can deny entry on IR-1 for lack of immigrant intent. A visa is just permission from the consulate to request that CBP admits you under a specified class of admission.

Also worth noting that while technically permitted 1 year outside the U.S. as an LPR, CBP starts getting angsty and asking questions at six months. I wouldn’t initially enter and then leave for longer than 120 days personally. Especially under the current administration.

Because you’re struggling with the concept of following the literal meaning of forms written at the level a 10-year-old should be able to follow. The biggest issue most people face is they overthink and read meaning into the directions. It’s a lot easier to introduce ambiguity with words when it’s not your native language, even when you have a very high-level of competency in the language. That is absolutely not a knock on your language skills. It’s that a good way to avoid that is to confirm your understanding of what it’s asking you with a native speaker. I do it all the time in Spanish, and I use Spanish professionally. There’s really no way a native English speaker would see any ambiguity in the I-130A. It’s a very straightforward form that can be completed in 30 minuets if you just take the instructions for their literal meaning. If you do have questions, we’re more than happy to help, but I think this could cut down on a lot of them.

You can also use your maiden name as a middle name for non-government purposes without legally changing it.

It’s hard to keep track of what’s been mentioned as there’s yet another topic somewhere that hasn’t been merged that you started related to the I-130A. I would really encourage your spouse to read through it with you rather than you do it on your own. All US government forms are written in literal plain English; which means it is written at the level where a native English speaker who has completed primary school will be able to understand it. My Spanish is near native, but I sometimes have questions when dealing with Chilean government paperwork and my husband explains it to me. Having a native speaker help with forms is useful even when there’s a high level of second language proficiency. Go over the form with your spouse and tell them to read it literally with no guesses or speculation as to what something might mean. That will likely answer most of your questions.

My personal favorite last name law is in Chile — they legally have two last names but in practice only use the paternal one (that goes first.) If for some reason you don’t like your dad you are permitted by law to change the order of the last names once, and only once. Having daddy issues was the actual reason this major change to the law was permitted a few years ago. As far as I’m aware, even if there’s a name change out of country you’re stuck with your birth last name otherwise.

In some Latin American countries it might not even be possible. The concept of changing last names is very foreign in a lot of the Spanish speaking world. To the point where the law to change names might not exist just because no one in power has ever realized it’s something anyone would ever want to do.

I linked you to the instructions for the I-130/I-130A on the other topic you have on this. That plus the RFE should be enough.

It’s asking for domicillios.

And if the I-485 is denied a notice to appear will be issued which will make it even more complicated. Jurisdiction would shift from USCIS to EOIR.

Read the file I linked in my earlier post. It contains an analysis as to what USCIS considers to be misrepresentation for the purposes of AOS. People like to focus on intent, but the more important question is misrepresentation (as defined by BIA and the INA; again, the file I linked contains a discussion of this.) The overwhelming majority of spousal AOS cases are granted, including overstays and people on tourist visas. AOS cures a lot by action of law and local field offices have discretion to grant adjustment in gray areas. The issue you will run into is that: 1) West Africa is the most fraud prone region of the world on spousal immigration, causing the government to ask more questions. 2) You had an interview with a consular official who will have recorded what you said in writing and that will be analyzed 3) You had to talk to CBP and as a non-VWP country they likely asked questions that might have been recorded in writing in the admission record. That means you have two chances for the government to accuse you of misrepresentation. Again, read the AAO file I linked to. If you don’t think you misrepresented to a government official based on the standards discussed; your AOS might be granted as a matter of discretion in favor of family immigration. But I would expect significant questions in that regard under the current administration.

Correct — I edited after you quoted me. Pre-conceived intent and misrepresentation are different under the regulations. If you get waved through at the airport with no questions (it happens) and adjust, that’s not necessarily misrep. If you tell them you’re only here for a conference and then adjust the next day, that’s a bar for misrep. It’s why what was said to the CBP officer and the consulate matter. The question of misrepresentation is adjudicated first, then the question of intent. This AAO ruling explains it in a bit more detail. Worth reading for OP because AOS was denied in that case and it shows how broadly USCIS reads the statue on misrepresentation.

Even if there was preconceived intent, that’s not a bar to AOS in itself (Matter of Cavazos is still on the books and is binding on USCIS.) It’s not the same as fraud and is adjudicated differently. The question is what was said to the consulate/CBP upon entry, what was recorded in the visa file and admission record, and whether USCIS believes the actions after admission are materially inconsistent with what was told to the consulate and CBP in such a manner that it constitutes misrepresentation. If they do, then they can adjudicate as misrepresentation, which triggers a ban making the analysis for pre-conceived intent moot. They could also just refer the I-485 to an IJ for adjudication because it doesn’t pass the sniff test and that’d add a significant amount of time to the process even if the IJ grants adjustment. The change in administrations is a relevant factor here. Under Biden you likely would have been fine (for the reasons @pushbrk and I mentioned.) Current administration is much more likely to scrutinize all statements for misrepresentation.

It’s unclear if that’s when CR-1 was issued or when GC was issued, so theoretically could still be out of the 90 day period (i.e. CR-1 issued 9/30/2023; entered US 3/15/2024.) Its why the specific dates matter. Most likely within 90 days like you mentioned, but OP really does need to be specific with dates.

Historical norm in cases like this where they want to be strict is issuing a notice to appear, but that’s also an option. Not sure if the current climate has had any impact on their preference on detention vs. NTA and release. Important thing in OP’s case is not to sign anything whatever CBP does.

Doing a quick and dirty will (most states have government published default templates for non-complex cases) also is useful. I’d add that if you register your marriage in Colombia I also wouldn’t upload that as evidence. Latin American registros civiles are extremely particular on how things are recorded and if it lists the effective date of marriage as the day registered rather than the date of marriage it could also raise questions.

Also if the green card is not expired insist on being admitted to the United States and do not sign anything. CBP might ask you to sign documents saying you gave up your legal permanent residency. You do not have to sign them. If the GC has not expired and you’re within the U.S., only an immigration judge can remove LPR status. CBP can issue you a notice to appear before an immigration judge, but that is infinitely better than you voluntarily relinquishing status. Odds are they give you a lecture and let you in without doing any of that because CBP likes to avoid paperwork, but depending on the officer you get they could send you to secondary where you’ll get to experience what I described above.

Because beneficiary is abroad. That’s the reason. I-130 instructions (PDF): page 1, NOTE 1

Yep. OP was asking about online, but useful clarification for anyone else who finds this by searching.

The one exception to the dual intent rule. Of course

Also worth noting P-1 is dual intent. Meaning that if you wanted to you are allowed to hop on a plane tomorrow, land in the U.S., and file for AOS. You have to establish that you have a foreign residence that you plan to maintain when you get the visa, but you are permitted to enter the United States with immigrant intent. There are disadvantages to that route (it costs more and you can’t leave the country until they give you advanced parole or a green card), but you’re both at the age where people change plans on work, retirement, etc. and you might want to get a green card more quickly (AOS usually processes faster if you’re already in the U.S.; main advantage if you just want to get the green card done and over.) CR-1/IR-1 is cheaper and less paperwork overall, but takes longer. End of the day depends on what your priorities are. P-1 doesn’t make anything more difficult. Just gives you more options than most have.