Confused and need help please

[Nir12 1]

If you don't do that you could end up like us. With a rejected I-485 and an I-130 that hasn't been NOA or rejected yet after 15 days. So yes, please read carefully and ask questions that you need to ask.

[S.P.G. 0]

please click this --> http://www.visajourney.com/content/i130guide2

Get all the forms listed in the Download the Following Forms: section

and go forth.

It's a safe link to click - it DOES NOT INSTALL any malware on yer computer. I promise.

Thanks Darnell.

Can you confirm this is right for cost....

I-130 - $355

g-325a - $0

I-864 - $70

I-485 - $1010

I-765 & I-131 free with I-485

g-1145 - $0

total cost of $1435

And all of this has to be paid in a lump sum when you file these forms in the whole package? (ouch)

Thanks again

[Nir12 1]

Thanks Darnell.

Can you confirm this is right for cost....

I-130 - $355

g-325a - $0

I-864 - $70

I-485 - $1010

I-765 & I-131 free with I-485

g-1145 - $0

total cost of $1435

And all of this has to be paid in a lump sum when you file these forms in the whole package? (ouch)

Thanks again

I-864 is included in the I-485 packet, and you don't have pay anything for that if you're filing I-130 and I-485 jointly.

[Darnell 8,479]

the fee of 88 for the I-864 is waived because the file is not prepped for adjudication overseas - it's adjudicated in the USA.

So - I-864 fee - $0.00

Edited August 11, 2010 by Darnell

[S.P.G. 0]

the fee of 88 for the I-864 is waived because the file is not prepped for adjudication overseas - it's adjudicated in the USA.

So - I-864 fee - $0.00

K gotcha, now we have to weigh up if we can actually afford to pull out $1400 with the newborn coming any day now.....ugh

Do they both (i-130 and i-485) need to be sent in at the same time? Or is it possible to do just the i-130 alone to get a temporary extention or whatever it does, and then later file the 485 for permanent?

If that doesnt make sense its because i dont fully understand what the 2 forms do....the 485 is self explanatory, its for a permanent change.... but the 130...what is that for exactly?

[Darnell 8,479]

kittyfang - I see you hovering around, lass - can you fill in SPG here on that AOS stuffsen?

(spg - IMO, kittyfang has done serious research on all for AOS whilst in-country - you should befriend her, quickly).

Edited August 11, 2010 by Darnell

[Bl@ckRoSe 0]

K gotcha, now we have to weigh up if we can actually afford to pull out $1400 with the newborn coming any day now.....ugh

Do they both (i-130 and i-485) need to be sent in at the same time? Or is it possible to do just the i-130 alone to get a temporary extention or whatever it does, and then later file the 485 for permanent?

If that doesnt make sense its because i dont fully understand what the 2 forms do....the 485 is self explanatory, its for a permanent change.... but the 130...what is that for exactly?

It is very IMPORTANT that you send both the I-130 and I-485 concurrently, which means, at the same time, in a very big envelope. Inside the big envelope - it probably best to have the I-130 in one envelope, and the I-485 in another.

I-130 is for your wife - who is petitioning for you.

I-485 is for you - the beneficiary.

Look through the AOS guide and follow what you need to include in BOTH packages. The guide really HELPS ALOT. Not a MIMIC or false one. I followed it closely while I had to prepare for mine AOS.

If you look through the guide, it will says you would need TWO seperate checks for I-130 and I-485. Please read the AOS guide, as well as the USCIS site, to make sure you have the correct edition forms filed and the latest in the fees.

Oh, you need to remember that you have to file for the AOS before your I-94 expires, which means, you have to file before October - which means - you have two months to gather all the evidence and supporting documents.

Hope that helps. Good luck on filing!

[Kittyfang 6]

kittyfang - I see you hovering around, lass - can you fill in SPG here on that AOS stuffsen?

(spg - IMO, kittyfang has done serious research on all for AOS whilst in-country - you should befriend her, quickly).

Hey Darnell!

You are right, I was hovering around. I read the post and had to leave for a few hours, but forgot to turn off my computer. I apologies if it looks as though I was ignoring you.

As many have said, if you are in the U.S., AoS is an option. I believe that there are differences when you are on the WVP, as far as overstays are concerned, but since you don't have an overstay problem, it's not an issue.

Darnell was right, as was the link. You will need I-130, I-485, G-325a (four copies), I-864, I-765, I-131 and g-1145.

A note about I-131. Some people file for it and use it, but sometimes, some people get issues at the border. Those people are often overstays, but personally, even if I wasn't an overstay, I wouldn't risk it.

Furthermore, you will need proof of a bona fide relationship. While wedding pictures and Christmas cards may remind us all of the person we love, those things do not impress USCIS. What you will want to show them are things where you are commingling your money. Joint bank accounts, both names on a house/car title, both names on bills, income tax filed jointly.

Since you've been in the U.S. for a short time, they might not require as much and they might focus on your intent more. Intent is a subject of great debate on VJ. Some will say that in an AoS case, intent cannot be used to deny an AoS. There is caselaw regarding this. I don't believe having read about anyone being denied for intent, but it might come up. It helps to be able to show proofs that you were going back; a return plane ticket, a letter from an employer, am apartment lease, etc.

As for sending everything together, it's usually the way to go. Recently, someone's paperwork was returned because it was not "filed together".

Look, I know how you feel. As Darnell has said, I have been around for a long time (and still haven't filed, but we're close!). I have researched a lot and asked every single question that came trough my mind. The one thing I have learned is that it helps a lot to sit down and read the instructions once, twice, three, four, five times... as many times as it takes until you can practically quote them by heart. Some instructions seem to only exist to confuse you and it helps to know, in details, what you have to do.

I hope this helps.

[JimVaPhuong 4,863]

Darnell and others have given you the links to information you need. This information will get you started. Be prepared to do a lot of additional reading. Pay close attention to the instructions for each form, as well. In order to adjust status to permanent resident you must:

1. Apply (this is the I-485 and related forms).

2. Be eligible for an immigrant visa, and not inadmissible. You are eligible as the spouse of a US citizen. There are a host of possible inadmissibilities. The health related ones will be covered in your civil surgeon medical exam and vaccinations. The criminal related ones you'll provide information for with the I-485 (mostly by answering "no" to the questions).

3. There must be an immigrant visa immediately available for you. There is ALWAYS an immigrant visa immediately available for an immediate relative of a US citizen. Your wife's I-130 petition is intended to establish this fact.

You may also need some documents that you may not have brought with you. Obviously, you can't return home to get them. You may have to ask someone to send them to you.

Now, for the consequences...

Once your AOS application is accepted by USCIS (within a few weeks of being sent - you'll receive an I-797C notice when it's accepted) then you'll be granted a "period of authorized stay" while your AOS is being decided. If your I-94 expires before your AOS application is accepted then you'll be out of status; i.e., unlawfully present in the US. Unless you have an encounter with US immigration authorities during this time, the odds of you being deported are practically zero. Do not go within 100 miles of any US border - there are random immigration checkpoints near the borders. Do not travel by air, even domestically. There was a somewhat famous case of a Harvard student who was caught while trying to fly from Texas back to Boston.

Normally, you have to maintain your legal non-immigrant status in order to be eligible to adjust status. Someone else posted in this thread regarding this. DO NOT WORRY! This requirement specifically DOES NOT APPLY to an immediate relative of a US citizen. Your AOS will NOT be denied if your application isn't accepted until after your I-94 expires. Given the (remotely possible) consequences of being caught by immigration authorities while you're out of status, it would be wise to file as soon as you are able. Just don't feel it's so urgent that you need to do something drastic or stupid in order to get it filed before the I-94 expires, like selling your new baby off to slave traders or something.

Now, for the serious stuff...

When you entered on the Visa Waiver Program you waived all rights to have any decision by USCIS reviewed or appealed. If your AOS is denied then you cannot appeal the decision to the Administrative Appeals Office, an immigration judge, the Board of Immigration Appeals, or even a federal appeals court. The immigration officer at USCIS who decides your case has the power of God - their judgment is final and binding. Add to this the fact that adjustment of status is discretionary - the immigration officer will weigh the positive and negative factors and make a decision. If the positive factors outweigh the negative then you'll be approved. Being the spouse of a US citizen is a big positive factor. If the immigration officer determines you had a preconceived intent to immigrate when you entered the US (you had a baby on the way, after all) that would be a big negative factor. Normally, it wouldn't be enough of a negative factor on it's own to outweigh the positive factor of being the spouse of a US citizen, but your situation isn't normal. You specifically stated, by accepting the terms of entry on the VWP, that you did not intend to immigrate. The combination of the preconceived intent and the misrepresentation made by entering on the VWP could be enough to deny you.

Now, there are precedent cases where the Board of Immigration Appeals has determined that preconceived intent alone is not sufficient to deny an AOS application when there is the positive factor of being an immediate relative of a US citizen. On the other hand, your case will never make it to the BIA because you can't appeal the immigration officer's decision.

This is why there is a general admonition to people who enter on the VWP to be very careful when applying for adjustment of status. If it isn't approved then you MUST leave the US. You have no other recourse. If it's denied because they believe you lied about your intentions, then you'll be banned from the US, and your wife will need to pursue a hardship waiver to get you back to the US. The risk is real. You should spend some time researching this before you make your final decision about which way to go - AOS or CR1.

[Darnell 8,479]

KittyFang - thanks, lass ! Whew !!

Jim - hey !!! (There ya go) .. Thanks for stepping up with the other bits...

S.P.G. - duh - forget one important bit - the medical exam fee from a Civil Surgeon - you'll need to look into that, asap, for yer area. Prices vary, but be expected to pay some serious dough, on top of it all. The medical exam stuff is filed with the I-485.

Edited August 12, 2010 by Darnell

[trillium13 84]

To the OP-

Were you already married when you entered on VWP? Was your wife already pregnant at that time?

I apologize if this was already answered, I only skimmed the thread.

[JimVaPhuong 4,863]

Jim - hey !!! (There ya go) .. Thanks for stepping up with the other bits...

I may have been a little hasty with telling him not to worry about overstay. I had forgotten that USCIS has been a lot less lenient lately with VWP entrants who overstayed and tried to adjust status. About half the time, they refuse to accept the AOS petition and just start removal proceedings against the applicant.

S.P.G. - Ignore what I said about not worrying about filing your AOS before the I-94 expires. It's too risky.

Ummm... you STILL shouldn't sell the baby to slave traders, just in case you were wondering.

[trillium13 84]

I may have been a little hasty with telling him not to worry about overstay. I had forgotten that USCIS has been a lot less lenient lately with VWP entrants who overstayed and tried to adjust status. About half the time, they refuse to accept the AOS petition and just start removal proceedings against the applicant.

Slight threadjack here, but have you seen actual cases of this here? How recent? Is it for just the overstay alone? Is it only in certain districts or all over?

Just my own curiosity, really. We were VWP adjusters with overstay but that was over a year ago.

[S.P.G. 0]

To the OP-

Were you already married when you entered on VWP? Was your wife already pregnant at that time?

I apologize if this was already answered, I only skimmed the thread.

we weren't married as we just got married last week, but yes she was pregnant already from my last 3 month stay when we were fiancee

thanks for the help guys, this is all very very much appreciated

[JimVaPhuong 4,863]

Slight threadjack here, but have you seen actual cases of this here? How recent? Is it for just the overstay alone? Is it only in certain districts or all over?

Just my own curiosity, really. We were VWP adjusters with overstay but that was over a year ago.

Mostly lawyer blogs like this one:

http://www.cavanaughlegal.com/adjustment-of-status-aos/adjustment-of-status-green-card-through-marriage/

There is a trend in many local USCIS offices to no longer be so lenient with adjustment applicants who have overstayed the visa waiver program (VWP). Roughly half of US immigration offices have begun denying these cases and deporting the applicant. Further, the 9th and 3rd US Court of Appeals have held that only those VWP applicants who file adjustment of status applications prior to the expiration date of their authorized stay are not immediately deportable at the discretion of immigration officials.

This AILA blog mentions some of those specific cases:

http://www.ailaslipopinionblog.org/category/adjustment/

The AILA blog says that USCIS will adjudicate the AOS petition, even if the applicant has overstayed. However, in McCarthy v. Mukasey the Fifth circuit court dismissed the appeal, agreeing with DHS that she had waived her right to adjust status and appeal deportation. Joan McCarthy married her US citizen husband on May 5, 2006. Her VWP entry expired on May 7, 2006. She filed for AOS about one year later, on May 8, 2007. On May 10, 2007, USCIS initiated removal proceedings without adjudicating the AOS petition.

McCarthy tried to use other precedent cases in her defense, saying that the "no contest" clause should not have applied since she filed the AOS before the notice to begin removal proceedings was issued, specifically citing the Freeman v. Gonzalez case. The court responded that Momeni v. Chertoff narrowed the findings in the Freeman case, stating "Freeman was an exception because she was eligible to adjust her status at [the] time she arrived".

McCarthy was deported.

If the stats quoted by Cavanaugh are correct, the odds are about 50/50 that a VWP entrant with an overstay will be deported rather than being allowed to adjust status.