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

[heckled 0]

Thanks kelzm and marlita. Very to the point and exactly what I was asking about. That gives me confidence and confirms I was thinking in the correct direction.

Good luck everybody!

[Marlita 0]

no problem.

[diadromous mermaid 36]

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.

I can see how you must govern all discussion, however I don't wish for you to confuse people. For the record, I did not say anything that is contrary to my first post at all.

To answer the OP, yes he can file the I-130 while she is here. If she came to the USA on a tourist visa, without any intention of remaining here (and learned that he would become naturalized in the interim), provided there are no other details that have not been shared that could cause complications, she could adjust status while in the USA and doesn't have to leave!

[diadromous mermaid 36]

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!

The regulations do not require that a person on a tourist visa depart before adjusting status in the USA. The regulations stipulate that the person on a tourist visa not ENTER the country with the express purpose of remaining. BIG difference.

[Mags 112]

The need for drama...

To clarify, DM here is just correcting misinformation, she is not being a drama llama at all. Her information is, actually, spot on.

[Marlita 0]

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!

The regulations do not require that a person on a tourist visa depart before adjusting status in the USA. The regulations stipulate that the person on a tourist visa not ENTER the country with the express purpose of remaining. BIG difference.

Well I don't think she is adjusting status if she doesn't have a status to begin with. If her visitor visa expires then yes she has to leave.

[Kez/JWolf 6]

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!

The regulations do not require that a person on a tourist visa depart before adjusting status in the USA. The regulations stipulate that the person on a tourist visa not ENTER the country with the express purpose of remaining. BIG difference.

Well I don't think she is adjusting status if she doesn't have a status to begin with. If her visitor visa expires then yes she has to leave.

As an immediate relative of a USC if she was legally admitted into the USA then she can file for AOS and remain here.... there is no legal reason for her to leave.... and she does have a status while here it is that of a non-immigrant visitor and she can now change that status to Lawful Permanent Resident...

DM is spot on in her understanding of the law.....

Kez

[Marlita 0]

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!

The regulations do not require that a person on a tourist visa depart before adjusting status in the USA. The regulations stipulate that the person on a tourist visa not ENTER the country with the express purpose of remaining. BIG difference.

Well I don't think she is adjusting status if she doesn't have a status to begin with. If her visitor visa expires then yes she has to leave.

As an immediate relative of a USC if she was legally admitted into the USA then she can file for AOS and remain here.... there is no legal reason for her to leave.... and she does have a status while here it is that of a non-immigrant visitor and she can now change that status to Lawful Permanent Resident...

DM is spot on in her understanding of the law.....

Kez

Yes but what happens when her original visa expires? So she has to file AOS before that right? Thats all I am saying. So if what you are saying is the case....should the OP just have his wife file AOS instead? What exactly is filing AOS? Which form should he be submitting for her?

[Kez/JWolf 6]

Yes but what happens when her original visa expires? So she has to file AOS before that right? Thats all I am saying. So if what you are saying is the case....should the OP just have his wife file AOS instead? What exactly is filing AOS? Which form should he be submitting for her?

It make no diffrence if her visitor visa has expired or not.... any overstay is forgiven when you are married to a USC and are Filing for Adjustment of Status.... the only problem they will have if her visa is expired is that she can not leave the USA until she has been approved and has received her Greencard.... so no point in applying for AP...

The Forms that they need to file are:-

1. I-130

2. G-325a

3. I-864

4. I-485

5. I-765 (optional)

6. I-131 (optional)

Kez

[Marlita 0]

Wow! Thats a pretty sweet deal that alot of folks seem to not understand. I know so many people who leave the US after their visitor visa expires cause they think they have to. So you're saying they don't..so long as they get there other paperwork in. But you know what this makes sense when you think about it. I guess thats why its so hard to get the visitor visa AFTER you have already filed your I130. But if your fortunate enough to get the visitor visa first and then happen to make the decision to become a permanent resident while you're in the US its a pretty sweet deal to not have to leave your loved one. This seems much more humane.

On another note, I don't understand why USCIS doesnt at least grant a temporary visitor visa for at least 90 days for married couples who are filing an I130. That seems more humane to me. People who are married should be allowed into the country with a visitor visa while their application is processing. I mean who wants to overstay and run from the law, when they are married and trying to get a green card to stay with their spouse permanently. Meaning who wants to jeapodize their green card by overstaying a visitor visa? Supposedly, this is what the K3 was supposed to be for, but thats a lie, cause that visa takes just about as long as the CR1/IR1. I think the visitor visa should be issued within 1 month of the NOA1. That makes more sense.

Edited February 24, 2008 by Marlita

[Kez/JWolf 6]

Wow! Thats a pretty sweet deal that alot of folks seem to not understand. I know so many people who leave the US after their visitor visa expires cause they think they have to. So you're saying they don't..so long as they get there other paperwork in. But you know what this makes sense when you think about it. I guess thats why its so hard to get the visitor visa AFTER you have already filed your I130. But if your fortunate enough to get the visitor visa first and then happen to make the decision to become a permanent resident while you're in the US its a pretty sweet deal to not have to leave your loved one. This seems much more humane.

On another note, I don't understand why USCIS doesnt at least grant a temporary visitor visa for at least 90 days for married couples who are filing an I130. That seems more humane to me. People who are married should be allowed into the country with a visitor visa while their application is processing. I mean who wants to overstay and run from the law, when they are married and trying to get a green card to stay with their spouse permanently. Meaning who wants to jeapodize their green card by overstaying a visitor visa? Supposedly, this is what the K3 was supposed to be for, but thats a lie, cause that visa takes just about as long as the CR1/IR1. I think the visitor visa should be issued within 1 month of the NOA1. That makes more sense.

The most important part of being able to file for AOS from a Tourist Visa or VWP is that at the time you entered the USA you MUST NOT HAVE PLANNED TO ENTER on a visitor visa and then file for AOS.... IF YOU DO THAT IT IS VISA FRAUD....

If on the other hand you came with the full intention of leaving the USA before your Visitor Visa or VWP expired, but for whatever reason you have changed your mind and now wish to remain in the USA and file for Adjustment of Status.. then the law allows you to do this....

Kez

[kelzm 0]

I think the planning issue is a very BIG thing for people to take notice of. If you go through the process and they find you had intent to immigrate from the beginning... ouch.

[Marlita 0]

Well how would they find that out? That question is very subjective if you think about it. Sounds more like a deterent to a person who has the sole purpose of coming to the US just for visa fraud. But a person, who is married to a USC and wants to stay and become a PR....well then of course they are coming to visit with an intent to stay...you know...somehow...eventually. The only reason they can't is cause this little excerpt tells them they shouldnt have the "intent"? Thats odd. I mean....what exactly is "fraud" about wanting to adjust status while living with your spouse rather than spending years without them. I think the US government has so many rules and regualations that have so many loop holes its ridiculous. I understand the point that excerpt was trying to make...when dealing with an ILLEGAL immigrant, but when dealing with a immigrant who is going thru the process the LEGAL way...it makes absolutely NO SENSE.

This country is so big on making all these issues and rules for combating illegal immigration, but they haven't streamlined ANYTHING for actual legal immigration. A LEGAL immigrant should have the option to visit their USC spouse while adjusting status. Or have the right to live with them while it is processing. If they are denied, then they have to leave. The only reason why this isnt the case is cause the government is so concerned that the immigrant will become a public charge or never return to their country and stay in the US illegally. But why would the immigrant do that? After filing the I-130 the USCIS now has all pertinent information they need to make a go/no-go decision. Meaning they have copies of legal documents, names, residence history, parent names, USC information and whereabouts. You would literally have to become a fugitive if you decide to "run" AFTER submitting your I-130. The USC will be tracked and so will the immigrant. If the government wanted to find you, they surely could.

I'm just ranting right now. But the more I sit and think about this whole immigration set-up....the more I realize that its more geared towards keeping illegals out rather than letting legals in.

[diadromous mermaid 36]

Well how would they find that out? That question is very subjective if you think about it.

It's not really subjective at all. There are many ways that USCIS could find out if an alien that enters as a tourist had immigrant intent. Let me give you a hypothetical.

Tourist gives up his job, gives his pets to a neighbour, sells the house, there are advertisements for several weeks before his intended departure date in April, selling the contents of his home. The auto he was leasing is returned to the leasing company, or, alternatively, the auto is up for sale shortly before he leaves for the USA. He notifies his landlord that in April when he leaves for a "purported" 6 weeks visit to the USA he will not be needing his apartment anymore. He withdraws most of the funds he has held in his bank account in his country, leaving little remaining in the account. As he steps on the plane headed to the USA, what evidence remains in his country in the way of "ties" to suggest that there is a life which he intends to return to after his trip? All of these actions, and a number of others that I could mention, indicate that the alien may have been planning not to return.

In so far as a tourist's status once in the USA, it's easy. During the validity period of his or her I-94, he or she holds lawful non-immigrant status. Afterwards, and until an adjustment of status application is filed, he or she is out of status, but the INA states that as long as an individual is married to a US citizen, any out of status time will be forgiven as long as the alien entered with inspection. So, you see, it is all kosher.

Now to address what seems to disappoint you. The immigration process is defined as a multi-step process. An individual that has represented a desire to reside in the USA is required to follow procedure. The statutes permit an alien whose decision to pursue permanent residency was impromptu while here to adjust status for the US citizen spouse's benefit. Any entrant to the USA is considered to have "immigrant intent". The only reason that a tourist is permitted entry is because he or she has demonstrated satisfactorily that he or she has signicifant ties to his or homeland to indicate that he or she will return at the end of the validity of the I-94. Naturally, it is more difficult (not impossible, under certain circumstances) for a would-be immigrant to get a tourist visa because he or she has already confirmed "immigrant intent" by submitting a request for a visa. While the tourist's intent to reside in the USA is first demonstrated upon the submission of an application to adjust status and very often those individuals have significant ties remaining to his or her homeland that need to be settled stateside.

Better?

[Marlita 0]

Not really! I understand your hypothetical, but its VERY hypothetical to many people. I mean, the person you speak of had a whole heck of alot of "stuff" to get rid of or coordinate before their visit to the States. Thats not the case for many people. Many people have "ties" to their country in other ways than just monetary. In ways that maybe the US just doesnt honor, respect or understand. The hypothetical still proves the point that the immigration system has been shaped due to the illegal immigrant and fraud problems. The system is not set-up or geared for the standard citizen, LPR or intending LEGAL immigrant.....and that is just plain sad.

You even stated that "Any entrant to the USA is considered to have "immigrant intent"." Why is this the case? That Any visitor to the US is apparently considering immigrating here? Jeesh! What about the many people on here with spouses who have NEVER even had the opportunity to visit the US. They have to all of a sudden immigrate to a country that is basically saying they are guilty until proven innocent, because that country won't even allow them a 90 day visit to see if they even like the place.