I-130 filing while in US - is there a definite answer?

[heckled 0]

So I browsed almost all topics in this forum and could not find a definite answer - is it OK to file I-130 while spouse is visiting in the US. Many people are asking is it worth to get a visitors visa while I130 is pending but I couldn't seem to find the one that is similar to my situation.

My wife has got multi entry long term visitors visa long time ago. Was coming to US two times already for several months. She is now here until July (this is what I94 stamp says). I will become eligible to file I130 as USC in March (oath on 3/20 - will have taken me exactly 1 year 2 month and 18 days to naturalize since I filed N400 on 1/2/2007 - slow as hell but that's different story).

So, the question is, should I wait until my wife leaves the US and then file I130 or I can file it while she is still here?

I tend not to attempt AOS since this seems a grey area for a visitor (even though I personally now the case when person in B2 status married in US and filed I130/I485 concurrently and got approved in 3-4 month in Chicago - year or two ago).

I know in the guides here it says pretty strictly that spouse has to be outside US while filing I130. However, reading instructions carefully or anywhere on USCIS site I can't find any reliable information that spouse absolutely should be outside US. it only says that I130 is used to "establish the existence of a relationship to certain alien relatives who wish to immigrate to the United States".

Anyone to share their experience and knowledge on this kind of situation? I am sure there should be many people within same situation.

Thanks,

/M.

[christinejohn 0]

As you said yourself " the spouse has to be outside US while filing I-130 ".

Now I have also heard about people who go to the States on a tourist visa and then apply for AOS.

There is no answer to your question. Is it allowed to be outlaw? No, though some people take the risk, some get caught, some don't.

It is your own responsibility to decide if you are whilling to take the risk to see your wife being deported and denied entry to the States for 5 years or to still risk it and be approved. Each case is different and depending on who you see, who opens your file, who makes the decison, it will never be the same for anyone.

It is a gambling decision, it might work and it might not. Nobody will ever tell you that it is ok to do so, it's your own call.

We all have hated the wait and have suffered from it, it is how it goes when you do things legally.

Maybe you should seek the opinion and help of a lawyer, then you have someone to blame or congratulate.

Good luck!

[diadromous mermaid 36]

As you said yourself " the spouse has to be outside US while filing I-130 ".

Now I have also heard about people who go to the States on a tourist visa and then apply for AOS.

There is no answer to your question. Is it allowed to be outlaw? No, though some people take the risk, some get caught, some don't.

It is your own responsibility to decide if you are whilling to take the risk to see your wife being deported and denied entry to the States for 5 years or to still risk it and be approved. Each case is different and depending on who you see, who opens your file, who makes the decison, it will never be the same for anyone.

It is a gambling decision, it might work and it might not. Nobody will ever tell you that it is ok to do so, it's your own call.

We all have hated the wait and have suffered from it, it is how it goes when you do things legally.

Maybe you should seek the opinion and help of a lawyer, then you have someone to blame or congratulate.

Good luck!

What????????? Please don't guess answers

Can my relative wait in the United States until becoming a

permanent resident?

Your approved relative’s petition gives your relative a place in line

among those waiting to immigrate. It does not let him/her come

to the U.S. or remain here until he/she can apply for

permanent residence. He/she should wait outside the U.S. to

immigrate legally. If he/she comes or stays without legal status,

it will affect his/her eligibility to become a permanent resident

when his/her place in line for a visa is reached. However, if your

husband or wife, unmarried child under 21, or parent is already

in the U.S. after having entered legally (and in certain other

circumstances), and applies for permanent residence when you

file your petition, then he/she may, with certain exceptions,

remain in the U.S. while we process their application for

permanent residence.

Edited February 23, 2008 by diadromous mermaid

[christinejohn 0]

Guessing answers? I said they are not supposed to, it is a deportation matter...

Now if some people are ready to jeopardise that can we tell them not to?

My own lawyer told me to cancel my I-130, to come to the US on a visitor's visa and to then apply for AOS... I chose not to, but this lawyer has been in the immigration industry for over 20 years and is a member of AILA... I MADE MY OWN CHOICE.

So I don't guess answers, I said he could take the risk or not knowing what the consequences could be.

His question was a non sense to start with since he already knew the answer...

[diadromous mermaid 36]

Guessing answers? I said they are not supposed to, it is a deportation matter...

Now if some people are ready to jeopardise that can we tell them not to?

My own lawyer told me to cancel my I-130, to come to the US on a visitor's visa and to then apply for AOS... I chose not to, but this lawyer has been in the immigration industry for over 20 years and is a member of AILA... I MADE MY OWN CHOICE.

So I don't guess answers, I said he could take the risk or not knowing what the consequences could be.

His question was a non sense to start with since he already knew the answer...

What part of this excerpt from USCIS do you NOT comprehend?

However, if your husband or wife, unmarried child under 21, or parent is already in the U.S. after having entered legally (and in certain other circumstances), and applies for permanent residence when you file your petition, then he/she may, with certain exceptions,

remain in the U.S. while we process their application for permanent residence.

[christinejohn 0]

I am not the one who asked this question, in fact I answered it once, and justified my answer once as well.

People here go through enough frustrations as it is.

Are you a lawyer? Because unless you are I doubt you know any better than anyone else who just try to help and support each other here.

I won't go any further, im me if you feel the need to.

[diadromous mermaid 36]

I am not the one who asked this question, in fact I answered it once, and justified my answer once as well.

People here go through enough frustrations as it is.

Are you a lawyer? Because unless you are I doubt you know any better than anyone else who just try to help and support each other here.

I won't go any further, im me if you feel the need to.

Hmmm.

I'll be happy to address each of your questions, if you address mine first.

Eligibility Information: Who May Apply to Become a Lawful Permanent Resident While in the United States?

You may be eligible to apply for adjustment to permanent resident status if you are already in the United States and if one or more of the following categories apply to you.

Family Member

You are the spouse, parent, unmarried child under age 21, the unmarried son or daughter over age 21, the married son or daughter, or the brother or sister of a United States citizen and have a visa petition approved in your behalf.

Visa Number

If you are a Family- or Employment-based applicant, you must have an immigrant visa number available from the State Department unless you are in a category that is exempt from numerical limitations. Immediate relatives of United States citizens are exempt from this requirement. Immediate relatives of U.S. citizens are parents, spouses, and unmarried children under 21. (For instance, you can apply to adjust to permanent resident status at the same time that your U.S. citizen daughter files an application for you to become an immigrant.)

Otherwise Eligible Immediate Relatives

If "otherwise eligible" to immigrate to the U.S., immediate relatives may adjust status to LPR (get a "green card") in the United States even if they may have done any of the following:

worked without permission,

remained in the U.S. past the period of lawful admission (e.g., past the expiration date on your I-94) and filed for adjustment of status while in an unlawful status because of that,

failed otherwise to maintain lawful status and with the proper immigration documentation, or

have been admitted as a visitor without a visa under sections 212(l) or 217 of the Act (which are the 15-day admission under the Guam visa waiver program and the 90-day admission under the Visa Waiver Program, respectively).

Please note: If a person came into the U.S. illegally, that person is barred from adjusting their status to LPR (cannot obtain a green card) even if he or she marries a U.S. citizen or otherwise becomes an immediate relative. An immediate relative must meet the eligibility requirement of being “inspected and admitted or paroled into the United States.”

Ineligible

http://www.uscis.gov/portal/site/uscis/men...00045f3d6a1RCRD

[christinejohn 0]

The need for drama...

[diadromous mermaid 36]

The need for drama...

You are being very impertinent, and I don't appreciate that.

[christinejohn 0]

This has been taken to private since it has nothing to do with the subject.

[diadromous mermaid 36]

This has been taken to private since it has nothing to do with the subject.

Really? It must be a one-sided private discussion then!

YOU do not know the specifics in the OP's case. Nor do I. So to pose an opinion on a case without information to back up such a suggestion is not only unfounded but also improper. On the other hand, supplying factual information such that an individual can extract that which applies, given his or her specific circumstance is appropriate.

Everyone is entitled to offer an opinion, but please, oblige me and let me know why it is that your opinion contraverts the regulations themselves? Why are you offering an opinion that suggests that the OP's wife cannot adjust status while in the USA without taking a risk and subjecting herself to potential "deportation" (as you put it) when you know nothing of the circumstances of her presence nor the options an alien, having arrived on a tourist visa, has to adjust legally while in the country?

I sense that you believe that no alien can adjust status while in the USA on a tourist visa without taking a so-called risk of deportation, as you put it. That is, in fact, quite erroneous. Aliens can and do adjust status while in the USA on tourist visas. The circumstances that preceeded the entry and the information offered the CBP at the POE are all-important as to whether that adjustment will be both successful or lawful. Coming over to this country on a tourist visa, with the express purpose of adjusting status while here is an entirely different situation than being here when the privilege to become a permanent resident becomes available.

Do you not see the distinction?

[christinejohn 0]

It was taken to private and I told you I didn't want to discuss the subject anymore.

Now as far as what you last wrote, you are saying the contrary of what you said in first place...

So out of respect for others, drop it, it is not a winning/losing forum.

As far as I am concerned people this is my last post about that subject and I apologise for the inconvenience.

[heckled 0]

So no one ever had had similar situation and/or experience? So far I just heard oppinions. I tend to agree with mermaid. I am only considering filing of I130 in the first place and pursuing IR-1 even though AOS seems perfectly OK as mermaid properly put the quotes from CIS docs.

So, just as mermaid, reading all the documents on CIS I don't see anywhere that it says that beneficiary HAS TO BE OUTSIDE of US the I130 is being filed for. Note, that I130 is just a petition to establish a family relationship as a basis for immigration and not an immigration itself.

There is a specific question 14 in the I130 form that asks to provide arrival/departure entry record I94 details if beneficiary is in the US. I don't think they are asking that just to find a person and immediately deport him/her. Other question on I130 asks if beneficiary intends to do AOS or will come back to homeland to finish processing in embassy.

These are logical conclusions that I am coming to and was just wondering if perhaps other visitors already has some factual knowledge of the similar situation.

Hoping to hear from more.

Regards to all/

/M.

[kelzm 0]

Well... I didn't read all the posts in the thread as they seemed rather off topic. What I did think is perhaps people are misunderstanding what you're asking.

If you're asking if you can file the I-130 while she is still visiting you, but she intends to leave, then yes. I myself took our application to the post office to mail it to USCIS. I then left the US to return to my home to wait for the processing.

It's perfectly legal to get the paperwork in motion, as long as she's intending to return home (and does so), it's when she remains that you could get into a sticky situation.

[Marlita 0]

Well after all the banter and high jacking of this thread I want to comment to the OP.

Yes your wife can be in the US legally on her multi- entry visa while her petition is processing. There are MANY people here on VJ and other immigration websites that will attest to this. She is in the us on a legal status when she has a visitors visa so their is nothing wrong with her bein in the US while her resident visa is being processed. She cannot overstay her visitor visa, but yes she can visit you. Many people travel on visitor visa for work also to the states while there petition is being processed.

The issue that many other people on VJ have is that they were not fortunate enough to have a multi-entry visa granted to them BEFORE they applied for CR1. If you try to visit AFTER you apply for your CR1 it will be much harder to get the visa...however not impossible. There are people who were granted visitor visas while their CR1 was in process also.....it all just depends and luck of the draw.

So to answer your question.....YES SHE CAN STAY. Enjoy your time together, send in your application in March and make sure she leaves before her visitor visa expires....and your all set.

Good luck!