Denied at Interview

[andymac 4]

Your profile indicates you entered on a K1 visa.. soo... someone is BULLSHITTING you. There is NO need to file an i-130. It's a petition for alien relative,.. wow.. who told you this? USCIS? A lawyer? There is NO deadline for applying for AOS from a K1 visa... NONE. Not filing for 2 years should be avoided because of what this topic demonstrates, but also because the immigrant cannot LEAVE or work in the US once their I-94 expires, lest they want to abandon the K1/AOS process...

As Jim said, filing after 2 years simply means a 10 year card, but you will be treated more strictly and need to show the same sort of evidence you would if you were filing for ROC (meaning LOTS of evidence of co-mingling)

hi Vanessa and Tony, in response to you last post and some others in this thread, can I quickly lay down my circumstances, I have the interview in 4 weeks and want to make sure the filing for AOS after so many years is not going to catch us out at the interview, can you comment on.....

Married USC October 2007. in USA. No intent to stay, VWP, married here and we both left for London.

Both of us Lived in worked in London November 2007 until September 2008.

Came to US to live and work September 2008, me on L1 visa ( 3 year)

waited until April 2010 to file AOS.

Interview late July.

Does this seem ok, or could there be a trip wire waiting for us, because we did not file for AOS soon after we arrived back in the US. I was here on L1, in fact I have another 15 months on that visa. Any tips in case we are quizzed at the interview?

Many thanks

[VanessaTony 3,567]

Section 101(a)(15)(K) describes K1 visas. A person who entered with a K1 visa, and who has been married for more than two years is no longer eligible for conditional residency. I think she may be right. I think an I-130 may be required.

No i-130 is needed. It makes no sense to file an application for alien relative otherwise there would be a notice SOMEWHERE saying a K1 has 2 years to adjust status otherwise they need to file an I-130.

The I-485 instructions where it says "k1" would specify that you can only AOS based on the K1 if attempting to do so less than 2 years from marriage.

I just don't believe an I-130 is needed.

At the time of filing the AOS application (no matter when) the eligibility is as a spouse who got their A number as a K1 and therefore doesn't need to file an I-130 in order to GET one. So whether the OP will get a 10 year card or whatever is up for debate, I think they will (if they show more evidence of course) but the confusing part is USCIS likes to get money where possible so giving a 10 year card and allowing them to "skip" paying for ROC seems odd for them... maybe the figure the immigrant didn't work the entire time so they paid for it kind of already by not earning that money.. who knows

[Darnell 8,478]

FWIW, I have read here, about this exact situation - where the time had passed, so long, that a letter was sent back, with the I-485 packet, returning the check as well, and the petitioner was asked to submit an I-130. It's been a few years, IIRC, and yes, she came in on a K-1.

[JimVaPhuong 4,863]

No i-130 is needed. It makes no sense to file an application for alien relative otherwise there would be a notice SOMEWHERE saying a K1 has 2 years to adjust status otherwise they need to file an I-130.

The I-485 instructions where it says "k1" would specify that you can only AOS based on the K1 if attempting to do so less than 2 years from marriage.

I just don't believe an I-130 is needed.

At the time of filing the AOS application (no matter when) the eligibility is as a spouse who got their A number as a K1 and therefore doesn't need to file an I-130 in order to GET one. So whether the OP will get a 10 year card or whatever is up for debate, I think they will (if they show more evidence of course) but the confusing part is USCIS likes to get money where possible so giving a 10 year card and allowing them to "skip" paying for ROC seems odd for them... maybe the figure the immigrant didn't work the entire time so they paid for it kind of already by not earning that money.. who knows

The I-485 instructions cannot contain the entire text of the INA. Section 245(d) is quite clear. A K1 can only adjust to conditional residency status. If the alien has been married more than two years, and they issue a green card based solely on the K1, and it's a conditional green card, then it conflicts with INA section 216(g)(1) which only allows for conditional residency in a marriage of less than two years. If they issue a green card based solely on the K1, and it's a ten year green card, then it conflicts with INA section 245(d) which only allows K1's to adjust to conditional residency status. I don't see how USCIS can use the K1 as a basis to adjust status after two years.

There are certain factors that would make a K1 ineligible to adjust status at all, such as marrying someone other than the K1 petitioner. As long as they met those requirements then they would not be ineligible on that basis, but if they waited more than two years then USCIS couldn't issue a green card based solely on the K1 without running afoul of some section of the INA. The alien would still be eligible under 245(a), which is the same section that applies to any other visitor who marries in the US. An I-130 would be required.

The whole thing is somewhat convoluted. Perhaps someone with a better understanding of immigration law will be able to clarify this.

[Adman 0]

Well, that has just thoroughly confused me, to be honest. If the INA really does mean what you've interpreted it to mean, then how have couples filing for AOS 2 years after marriage received GC's without filing an I-130? And for something that seems like quite an important exemption in how the I-130/I-485 work, there's not a single mention of it in the instructions for either form? I know they can't fit the whole INA in there but it would basically be a 1 line addition to pages of instructions!

I guess I'll know for sure soon enough, because my I-485 packet is in their hands right now. I just can't believe that in the years this site has been around, no one worked this out with any degree of certainty...

[JimVaPhuong 4,863]

Well, that has just thoroughly confused me, to be honest. If the INA really does mean what you've interpreted it to mean, then how have couples filing for AOS 2 years after marriage received GC's without filing an I-130? And for something that seems like quite an important exemption in how the I-130/I-485 work, there's not a single mention of it in the instructions for either form? I know they can't fit the whole INA in there but it would basically be a 1 line addition to pages of instructions!

I guess I'll know for sure soon enough, because my I-485 packet is in their hands right now. I just can't believe that in the years this site has been around, no one worked this out with any degree of certainty...

Most people do not wait two years to file for AOS after entering the US with a K1 and marrying, so it probably doesn't come up much.

The important fact is that the K1 immigrant never becomes ineligible to adjust status, even after two years. They simply change the basis for their eligibility from 245(d) to 245(a). Section 245(a) requires an immigrant visa petition.

BTW, people who file for adjustment of status based on marriage after coming to the US with anything other than a K visa DO need to file an I-130, either before or at the same time as they file the I-485.

[ronnielee67 2]

Well, that has just thoroughly confused me, to be honest. If the INA really does mean what you've interpreted it to mean, then how have couples filing for AOS 2 years after marriage received GC's without filing an I-130? And for something that seems like quite an important exemption in how the I-130/I-485 work, there's not a single mention of it in the instructions for either form? I know they can't fit the whole INA in there but it would basically be a 1 line addition to pages of instructions!

I guess I'll know for sure soon enough, because my I-485 packet is in their hands right now. I just can't believe that in the years this site has been around, no one worked this out with any degree of certainty...

Maybe this will make some sense. We sent the I-485 packet with the $700 worth of I-130's in it(2). Then, we got an RFE for my claimed income which was 2009 income that I hadn't sent . And , medical exams. We thought we had a chance of getting around that because I'd heard that the ones for the K-1 visa are all they need sometimes.

Now, if they didn't need the I-130's, wouldn't the letter have mentioned that? Wouldn't they have to return it?

[Darnell 8,478]

FWIW, that 'medical exam' done overseas, has a validity of 'about 1 year' after arrival in the USA, when adjusting status. PPL do get dinged for 'aged-out medical' as well, when doing AOS after 1 year of being in USA. Yup, I know it sucks, can feel yer pain on the medical bits.

[JimVaPhuong 4,863]

Maybe this will make some sense. We sent the I-485 packet with the $700 worth of I-130's in it(2). Then, we got an RFE for my claimed income which was 2009 income that I hadn't sent . And , medical exams. We thought we had a chance of getting around that because I'd heard that the ones for the K-1 visa are all they need sometimes.

Now, if they didn't need the I-130's, wouldn't the letter have mentioned that? Wouldn't they have to return it?

Not necessarily. People send unnecessary forms and documents to USCIS all the time. They usually just ignore what they don't need, but they don't return it or tell you it was not necessary.

You mentioned in a previous post that you made an infopass appointment to have your AOS package reviewed, and it was there that you were told you needed an I-130. I've read about other people who have filed for AOS after more than two years, but this was the first time I've seen anyone mention that an I-130 was needed. After rereading the relevant portions of the INA, it now makes sense to me why they would require this.

As I said in my other post, the INA is somewhat convoluted in this regard. The K1 was an amendment to the original law. It would have been far easier if they could have just listed the requirements in one place, but that's not how laws are amended. It would have left many sections of the law conflicting with the amendment, so each affected section of the law has to be revised. This means it sometimes takes some digging to find all of the information needed to come to any sort of conclusion. This is why USCIS adjudicators and consular officers have handbooks that consolidate the information in a way that's easier to understand and apply.

There are some requirements for the K1 that, if not met, would make the alien ineligible to adjust status under any circumstances, such as not getting married or marrying someone other than the petitioner. There are other requirements that, if not met, simply make them ineligible to adjust status based on the K1, but don't disqualify them from adjusting status on some other basis. For example, if the alien marries the petitioner after the 90 day window then they are no longer eligible to adjust status based on the K1, but they are still eligible to adjust status under 245(a) as the spouse of a US citizen. The law doesn't specifically exclude this, so it's allowed. An I-130 would also be required in that case.

[slangofoil 50]

Ok, here's the new evedence of co mingling we have now to send in.

Our utilities are all paid to the city and have been in my name since 2002, 5 years before Ilyanas arrival.

Membership agreement from the YMCA with both our names on it. Bank statements showing it drafted from Ilyana's account every month.

My business web site in my name drafted from Ilyana's account.

Netflix in my name drated from Ilyana's account

Bank statements showing Ilyana paying my cell phone bill several times.

Bank statements showing Ilyana paying My cablevision/internet bill occasionally.

Statement showing where my bank account was closed with a negative $375 balance in 2007 (before she got here).

Statement from Ilyana's bank showing where I would have been denied if we would have tried to put my name on her account Due to my account closing with a negative balance prior to opening her account.

2 reciepts where I paid fees for my stepdaughters school with all 3 of our names on it. It was paid with my prepaid debit card.

Sworn , notarized affidavits in regards to what they know about us and my level of honesty and integrity from:

2 of my main business clients- 2yrs and 20 yrs

2 close friends-14 yrs and 10 yrs

2 neighboring families-8 yrs

My Father(also our landlord)

My Mother

What can a lawyer do?

Do I need more?

You mention statements showing payments of your expenses from Ilyana's account. But do you have statements from YOUR account showing the money you deposited into HER account? I'd try to get that as well. Shows sort of a full "circle" of money going between you. Or is she the only one with an open account?

Edited July 3, 2010 by slangofoil

[jezebelseven 0]

Not necessarily. People send unnecessary forms and documents to USCIS all the time. They usually just ignore what they don't need, but they don't return it or tell you it was not necessary.

While I know they sometimes disregard documents they don't need, surely they wouldn't have cashed the check for the I-130 if it was not required? Like when people send a check for both I-485 and I-765 when the I-485 covers it, how they send a rejection notice for the bits that were not needed and return the check?

I can't believe we didn't have a way to find out we needed to file the I-130 too. I wish the guides had a little information about that, I know it's a rare occurrence but I'm seeing at least 3 people in this thread who it happened to (although they both somehow figured out to include the I-130 thankfully), so I just worry there are others out there who will make the mistake that we did.

I'm just praying they don't cash my check then deny us for not including the I-130, because it's going to be hard enough to get the ~$400 together for that, let alone if we have to refile everything after a denial.

[kjmel38 1]

While I know they sometimes disregard documents they don't need, surely they wouldn't have cashed the check for the I-130 if it was not required? Like when people send a check for both I-485 and I-765 when the I-485 covers it, how they send a rejection notice for the bits that were not needed and return the check?

I can't believe we didn't have a way to find out we needed to file the I-130 too. I wish the guides had a little information about that, I know it's a rare occurrence but I'm seeing at least 3 people in this thread who it happened to (although they both somehow figured out to include the I-130 thankfully), so I just worry there are others out there who will make the mistake that we did.

I'm just praying they don't cash my check then deny us for not including the I-130, because it's going to be hard enough to get the ~$400 together for that, let alone if we have to refile everything after a denial.

Hi! Jezebelseven

I Agree to Vanessa & Tony that there is no Form I- 130 needed if you were applying as from K-1 Visa to AOS, if you were Confused About The Amount 1,010 for Adjustment of Status, Form I- 485, becaused the Amount is not for Form I -485 only, It is Included the Form I -765 ,AP Forms ,even Form I- 130 if needed only, & Biometrics fee. The reason there is a certain amount in every Forms is, If you Applied it not at the same time.But if you are filing to adjust Status from K=1 Visa to Permanent Resident the Most Important Forms to fill up are this, Form I-485, Form I-765, Form I-864 , Forms G-325 -A And the AP Forms which will be needed if you plan to go out Of US while your Case is on Process. Form I 130 is Optional. If your wife/husband Alien relatives you like to petition to be with you guys here in US in a later date, there the Amount of Form I- 130 to be made a check, or in the other hand if you petition all of her relatives to be with you while your case is pending or in Process that Form 130 Apllied for, and if you are doing it at the same time, The Amount still 1.010 because this is for all Forms Applied and filled up & Filed at the same time. This is based on my own understanding , the results i made when i search what to do? what forms i must to fill up to adjust status, what i am saying is , this is according to my own experienced , But Still it is always in Case to Case basis, i am Just Sharing to all of you what i know , that may help you guys in sorting out the Matters. God Bless Us All.

Kjmel38

[JimVaPhuong 4,863]

Hi! Jezebelseven

I Agree to Vanessa & Tony that there is no Form I- 130 needed if you were applying as from K-1 Visa to AOS, if you were Confused About The Amount 1,010 for Adjustment of Status, Form I- 485, becaused the Amount is not for Form I -485 only, It is Included the Form I -765 ,AP Forms ,even Form I- 130 if needed only, & Biometrics fee. The reason there is a certain amount in every Forms is, If you Applied it not at the same time.But if you are filing to adjust Status from K=1 Visa to Permanent Resident the Most Important Forms to fill up are this, Form I-485, Form I-765, Form I-864 , Forms G-325 -A And the AP Forms which will be needed if you plan to go out Of US while your Case is on Process. Form I 130 is Optional. If your wife/husband Alien relatives you like to petition to be with you guys here in US in a later date, there the Amount of Form I- 130 to be made a check, or in the other hand if you petition all of her relatives to be with you while your case is pending or in Process that Form 130 Apllied for, and if you are doing it at the same time, The Amount still 1.010 because this is for all Forms Applied and filled up & Filed at the same time. This is based on my own understanding , the results i made when i search what to do? what forms i must to fill up to adjust status, what i am saying is , this is according to my own experienced , But Still it is always in Case to Case basis, i am Just Sharing to all of you what i know , that may help you guys in sorting out the Matters. God Bless Us All.

Kjmel38

Just to be clear... the cost for an I-485 is $1010 - $930 for the I-485, plus $80 for the biometrics.

It is misleading to say that this "includes" the cost of the I-765 (EAD) and I-131 (AP) because that would imply that the cost would be much lower than $1010 if you did not file these form with the I-485. It won't be. You aren't required to file either the I-765 or the I-131 with an AOS petition, and the fees won't be any lower if you don't. You have the option of filing these additional forms with an AOS petition, and the fees are waived for these forms if you decide to include them.

FWIW, I did some google research on the subject of the I-130 after a K1 yesterday, and came up with some mixed results. Where the bloggers and lawyers seemed to agree was that when an I-130 is required it's because USCIS has determined that the alien was no longer eligible under INA 245(d), and had to adjust status based on INA 245(a). Where they didn't agree was exactly when the alien's eligibility changes from 245(d) to 245(a), and the I-130 would be required. Some thought it was when the petition was submitted after the marriage reached the two year anniversary. Others thought it was if the petition was approved after the two year anniversary. Still others thought it was entirely up to the immigration officer to determine when it had been "too long". I couldn't find any clear guidance in the Adjudicator's Field Manual on this, either.

The only thing we know for sure is that USCIS does sometimes require an I-130 for a K1 who has waited a long time to file an AOS petition.

[kjmel38 1]

Just to be clear... the cost for an I-485 is $1010 - $930 for the I-485, plus $80 for the biometrics.

It is misleading to say that this "includes" the cost of the I-765 (EAD) and I-131 (AP) because that would imply that the cost would be much lower than $1010 if you did not file these form with the I-485. It won't be. You aren't required to file either the I-765 or the I-131 with an AOS petition, and the fees won't be any lower if you don't. You have the option of filing these additional forms with an AOS petition, and the fees are waived for these forms if you decide to include them.

FWIW, I did some google research on the subject of the I-130 after a K1 yesterday, and came up with some mixed results. Where the bloggers and lawyers seemed to agree was that when an I-130 is required it's because USCIS has determined that the alien was no longer eligible under INA 245(d), and had to adjust status based on INA 245(a). Where they didn't agree was exactly when the alien's eligibility changes from 245(d) to 245(a), and the I-130 would be required. Some thought it was when the petition was submitted after the marriage reached the two year anniversary. Others thought it was if the petition was approved after the two year anniversary. Still others thought it was entirely up to the immigration officer to determine when it had been "too long". I couldn't find any clear guidance in the Adjudicator's Field Manual on this, either.

The only thing we know for sure is that USCIS does sometimes require an I-130 for a K1 who has waited a long time to file an AOS petition.

Hi! JimVaPhuong,

Yes, Adjustment Status is 930 + 80 Goes to Biometrics Fee = 1,010 The Total amount of Adjustment of Status, And According to my Own research too, If I file Form I-485 and like to Work while the GC is not been released I can file Fom I-765 for EAD, to work while waiting to GC, which is the payment is not Needed to make another check in the Amount stated in Form I -765 if I filed it Concurrently with form I-485 , all i have to do is to fill up the Forms and Submit together with my Form I-485 the Form I-864, Form I-765, Form G-325 A, and ready one Check amounting 1,080 for my AOS Which I did and have my EAD Approved , pls. see my Timeline, what i am emphasizing is, this is what i do the Day before I filed My AOS.

Pleased bear in mind Once his /her your Fiance(e) Married his /her US Citizen Partner they are no Longer Called Alien Relatives but Instead Immediate Relative, Form I - 130 is referred to US Citizen Husbands/wife Relatives means your Immediate Relatives before Allien relatives , Who has Brother & Sisters or Parents, in thier Own Country who wishes to come to US to Live with you/ you whishes to Petition here it Occurs The Petition of Alien Relatives, this According in My Own Searched well , i don't please you to Believe me or rather Approve on me , I repeat again I am saying becaused this is what I Search on ,and Applied for my Self . I am sharing what I experienced & what I learned in reading Welcome to USA .gov/ WWW.USCIS.GOV/ www. Immi.Help.Com

Good Luck to All.

Kjmel38

[JimVaPhuong 4,863]

Hi! JimVaPhuong,

Yes, Adjustment Status is 930 + 80 Goes to Biometrics Fee = 1,010 The Total amount of Adjustment of Status, And According to my Own research too, If I file Form I-485 and like to Work while the GC is not been released I can file Fom I-765 for EAD, to work while waiting to GC, which is the payment is not Needed to make another check in the Amount stated in Form I -765 if I filed it Concurrently with form I-485 , all i have to do is to fill up the Forms and Submit together with my Form I-485 the Form I-864, Form I-765, Form G-325 A, and ready one Check amounting 1,080 for my AOS Which I did and have my EAD Approved , pls. see my Timeline, what i am emphasizing is, this is what i do the Day before I filed My AOS.

I wasn't criticizing what you said, but how you said it. This is a legal process, so accuracy is important. Your statement implied that the EAD and AP fees were "included" with the AOS fee. This would imply that someone who filed for AOS and did NOT also file for an EAD and AP would be able to deduct the filing fees for those forms from their total AOS cost, which of course is not true.

Pleased bear in mind Once his /her your Fiance(e) Married his /her US Citizen Partner they are no Longer Called Alien Relatives but Instead Immediate Relative, Form I - 130 is referred to US Citizen Husbands/wife Relatives means your Immediate Relatives before Allien relatives , Who has Brother & Sisters or Parents, in thier Own Country who wishes to come to US to Live with you/ you whishes to Petition here it Occurs The Petition of Alien Relatives, this According in My Own Searched well , i don't please you to Believe me or rather Approve on me , I repeat again I am saying becaused this is what I Search on ,and Applied for my Self . I am sharing what I experienced & what I learned in reading Welcome to USA .gov/ WWW.USCIS.GOV/ www. Immi.Help.Com

Good Luck to All.

Kjmel38

You are talking about classes of visas. I am talking about the term as defined in immigration law. An "alien" is anyone who is not either a US citizen or US national - INA section 101(3). You can be both an immediate relative of a US citizen AND an "alien".