i 130 for husband with b1 b2 visa

[dthom 0]

Hello

My husband currently has a valid b1/b2 visa with which he has entered the US twice. He is currently working in India and I am going to apply for his 1 130. So i had the following questions

1. If I apply for I 130 now, and the information gets forwarded to the National visa center, will the interviews be scheduled in one of the indian counsulates since his current address is India?

2. He is planning to come down here in Nov-December. If at that time he decides to stay here and not go back, what can we do to continue the rest of his visa processing here in the US, and get the interviews done here?

3. In December, Do I refile an I 130? Do i file an i-485 to change his status? I ask this since most places talk about filing I 130 and I 485 at the same time. But in this case, since I will be filing I 130, and my husband will be entering the US only later, I wasnt sure what the best thing to do would be.

5. Can we file for his EAD once he is here in december on a b1/b2 visa? Will this be possible since he is on a B1/B2 visa and has an i 130 pending?

Thanks in advance!!

[inloveVEN 46]

My opinion to your questions:

1. If I apply for I 130 now, and the information gets forwarded to the National visa center, will the interviews be scheduled in one of the indian counsulates since his current address is India?

Answer. i think that Nobody knows, you can see the timeline, but this is something that you cannot count on that with that accuracy.

2. He is planning to come down here in Nov-December. If at that time he decides to stay here and not go back, what can we do to continue the rest of his visa processing here in the US, and get the interviews done here?

Answer. No, as far as i know you need to start a totally different process. you need to go via Adjustmen of Status. You also have to take in account, that visiting USA while a IR-1 process is pending is a matter of luck if the port authority let you get in ( he needs to show strong ties to his country) additionally if he tells them that he probably will get in with the intention to live, probably they won't let him to enter, otherwise is not legal to say that you are a tourist with the real intention to inmigrate.

3. In December, Do I refile an I 130? Do i file an i-485 to change his status? I ask this since most places talk about filing I 130 and I 485 at the same time. But in this case, since I will be filing I 130, and my husband will be entering the US only later, I wasnt sure what the best thing to do would be.

Answer. You better decide which path to use otherwise you will need to stop a process and start a new one and pay again all the fees.

5. Can we file for his EAD once he is here in december on a b1/b2 visa? Will this be possible since he is on a B1/B2 visa and has an i 130 pending?

answer. you can file togueter your AOS, EAD, etc.

Here in VJ, you can find general guides that show you the diffrents process you can use.

VJ's Guides

Wish you luck

Thanks in advance!!

Edited July 9, 2010 by inloveVEN

[Leigh Ann 8]

Hello

My husband currently has a valid b1/b2 visa with which he has entered the US twice. He is currently working in India and I am going to apply for his 1 130. So i had the following questions

1. If I apply for I 130 now, and the information gets forwarded to the National visa center, will the interviews be scheduled in one of the indian counsulates since his current address is India?

2. He is planning to come down here in Nov-December. If at that time he decides to stay here and not go back, what can we do to continue the rest of his visa processing here in the US, and get the interviews done here?

3. In December, Do I refile an I 130? Do i file an i-485 to change his status? I ask this since most places talk about filing I 130 and I 485 at the same time. But in this case, since I will be filing I 130, and my husband will be entering the US only later, I wasnt sure what the best thing to do would be.

5. Can we file for his EAD once he is here in december on a b1/b2 visa? Will this be possible since he is on a B1/B2 visa and has an i 130 pending?

Thanks in advance!!

As has already been said, it's very unlikely that he'll be able to enter the country as a tourist when he has an immigrant visa application visa pending. You need to decide to commit to doing the CR1 visa and allow that process to finish before bringing him here. If you put off the process and he comes to visit and then you decide (after he is here) that you would like for him to stay, you can file for an adjustment of status. He can't say he has the intent of returning to India when he doesn't in order to get into the country--that's not permitted.

Three's no way to change the process halfway through - you do one or the other or you end up starting all over anyway, it seems.

You can't file for an EAD on a tourist visa, in any circumstance. You'd get one after you file for AOS, if you choose that route.

If he's going to stay in India and you're going to do the CR1/IR1, then his interview will obviously be there.

[dthom 0]

So would it be best to wait till he comes in november/december, and then start the whole process at that time such as file for I-130, I 485(adjustment of status)and I-765(EAD)? We are looking for him to get his EAD as soon as possible, since he would like to start applying for fellowships around Feb/March and start working by June/July.

[dthom 0]

If he is planning to stay back when he comes in Nov/December what should he say at the port so that he is not lying, and then adjust his status once he is in the country?

[JimVaPhuong 4,863]

If he is planning to stay back when he comes in Nov/December what should he say at the port so that he is not lying, and then adjust his status once he is in the country?

Entering the US with a non-immigrant entry pass or visa with the INTENT of immigrating is illegal. It's called "preconceived intent". If he is asked about his intent when he enters the US and he tells the truth then he will not be admitted to the US. If he lies, and then attempts to adjust status after entering the US, the lie could come back to bite him. If USCIS determines he had preconceived intent, but lied about his intent when he entered the US, then he's guilty of material misrepresentation - a lifetime ban from the US. He'd have to go back to India, and you'd have to try to get a hardship waiver for him. This is difficult, expensive, time consuming, and frequently unsuccessful.

Be advised that DHS may have evidence of his preconceived intent at the time he presents himself to a CBP officer to enter the US, but may allow him to enter anyway if he clearly states he does not intend to immigrate. For example, if TSA or CBP searches his luggage and finds documents required to immigrate, this information could be entered into his DHS record. If he states he does not intend to immigrate, and then subsequently tries to adjust status, then they've got him for material misrepresentation.

The preconceived intent alone cannot be used to deny his adjustment of status. It is a negative factor, but it's outweighed by the fact that he's an immediate relative of a US citizen. The lie at the port of entry WILL be enough to deny his adjustment of status and ban him from the US. Since he is married to a US citizen he will be suspected of preconceived intent, and there is a good chance they'll look for evidence of this at the port of entry. If they decide to admit him there's a good chance they'll want his clear statement that he does not intend to immigrate to be used as a sort of "gotcha" if he subsequently tries to adjust status.

Many people come to the US and adjust status based on marriage without any problems. I'm only telling you the risk if he enters the US with the intent to immigrate. It is illegal, he could be caught, and the consequences are severe. On the other hand, if he waits to get his CR1 visa from the consulate in India then there is no risk.

[dthom 0]

what about the 30/60/90 day rule?

[Kathryn41 3,205]

what about the 30/60/90 day rule?

There is no official 30/60/90 day rule. About 40 years ago there appears to have been a directive at that time that this could be considered during an interview but it is not a rule and never has been. A lot of lawyers will tell you that it is, but it is not. Times have also changed significantly since 1975. http://www.visajourney.com/forums/topic/86549-306090-rule/

Entering the US on a visitor's visa with the intent to remain in the US and adjust status is clear cut visa fraud - intentionally using a visa issued for one stated purpose for a totally different purpose in order to bypass the proper immigration process. It is illegal and as Jim VaPhuong pointed out, carries serious consequences. It is also a violation of the Terms of Service for Visa Journey for anyone here to recommend you follow that route or to assist you in committing visa fraud.

Your best bet is to start the complete CR-1 process which means filing the I-485 when it is requested by the NVC, having him do the interview at the Consulate in India, and then entering the US with a CR-1 visa, which means he gets a green card right away and can work as soon as he can find employment. Once the CR-1 is issued he does not have to use it right away - he has a 6 month window of time during which he can activate the visa so if he needs time to tie up loose ends he will have it. He may or may not be allowed to visit in November/December but he can certainly use the filed application as part of his evidence that he won't be remaining in the US on that visit. It is absolutely in both of your best interests that he does not stay in the US at that time but goes back to India at the end of the visit to complete the immigration process legally.

You need to remember that US immigration doesn't happen on your time schedule. It happens on theirs. You need to be willing to be flexible enough to adapt to their schedule instead of trying to circumvent it to fit yours. It just doesn't work that way.

Edited July 10, 2010 by Kathryn41

[milimelo 4,481]

There is no official 30/60/90 day rule. About 40 years ago there appears to have been a directive at that time that this could be considered during an interview but it is not a rule and never has been. A lot of lawyers will tell you that it is, but it is not. Times have also changed significantly since 1975. http://www.visajourn...49-306090-rule/

Entering the US on a visitor's visa with the intent to remain in the US and adjust status is clear cut visa fraud - intentionally using a visa issued for one stated purpose for a totally different purpose in order to bypass the proper immigration process. It is illegal and as Jim VaPhuong pointed out, carries serious consequences. It is also a violation of the Terms of Service for Visa Journey for anyone here to recommend you follow that route or to assist you in committing visa fraud.

Your best bet is to start the complete CR-1 process which means filing the I-485 when it is requested by the NVC, having him do the interview at the Consulate in India, and then entering the US with a CR-1 visa, which means he gets a green card right away and can work as soon as he can find employment. Once the CR-1 is issued he does not have to use it right away - he has a 6 month window of time during which he can activate the visa so if he needs time to tie up loose ends he will have it. He may or may not be allowed to visit in November/December but he can certainly use the filed application as part of his evidence that he won't be remaining in the US on that visit. It is absolutely in both of your best interests that he does not stay in the US at that time but goes back to India at the end of the visit to complete the immigration process legally.

You need to remember that US immigration doesn't happen on your time schedule. It happens on theirs. You need to be willing to be flexible enough to adapt to their schedule instead of trying to circumvent it to fit yours. It just doesn't work that way.

I-485? You mean I-864, right?

[Kathryn41 3,205]

Oops - thanks! I will reword that to say that the OP will then submit whatever other documents are required during the CR-1 process when they are requested, rather than trying to circumvent the process by committing visa fraud.

[dthom 0]

How about applying for a K3 visa for hid and then he can enter the country using that, and once he is here adjust his status (i485) and apply for EAD?

What time frame are we looking for to get a K3 visa? The reason I am trying to look at the shortest time frame possible is he is trying to get into a fellowship that starts May/June 2011. So the more important thing for us is to get the EAD at the earliest, even before the green card. We are fine with waiting for the green card.

[Leigh Ann 8]

How about applying for a K3 visa for hid and then he can enter the country using that, and once he is here adjust his status (i485) and apply for EAD?

What time frame are we looking for to get a K3 visa? The reason I am trying to look at the shortest time frame possible is he is trying to get into a fellowship that starts May/June 2011. So the more important thing for us is to get the EAD at the earliest, even before the green card. We are fine with waiting for the green card.

I think the K-3 has been effectively abolished - it automatically turns into the IR/CR-1 visa. You can ask for more information in the family visa forum.