I130 approved, but he or she is not eligible

[Alex7 0]

Hello all,

I'm GC holder and filled I130 for my wife. My wife is on F-1 visa.

Our priority date is July 27 2010. Today I've received Approval notice which states:

"The above petition has been approved. The petition indicates that the person for whom you are petitioning is in the United States and will apply for adjust

of status. The evidence indicates the he or she is not eligible to file an adjustment of status application. This determination is based on the information submitted

with the petition and any relating files. If the person for whom you are petitioning believes that he or she is eligible for adjustment of status, then he or she

should contact the local USCIS office for more information. Because the person for whom you are petitioning is not eligible to adjust, we have sent the approved

petition to the Department of State National Visa Center (NVC), 32 Rochester Avenue, Portsmouth, NH 03801-2909. NVC processes all approved immigrant visa which

consular post is the appropriate consulate to complete visa processing. NVC will then forward the approved petition to that consulate.

..."

What does it actually mean?

many thanks.

[canadian_wife 1,829]

It means, I think, that the petition has been approved but she cannot adjust status. She, according to the above, must return home for the consular interview

Call USCIS and find out why she cannot adjust status, is she in overstay? Did you make it clear that she is in the US? What information did you submit that lead to them believe that she cannot stay in the US and adjust status.

Call USCIS

Good luck

[George & Gina 29]

Hello all,

I'm GC holder and filled I130 for my wife. My wife is on F-1 visa.

Our priority date is July 27 2010. Today I've received Approval notice which states:

"The above petition has been approved. The petition indicates that the person for whom you are petitioning is in the United States and will apply for adjust

of status. The evidence indicates the he or she is not eligible to file an adjustment of status application. This determination is based on the information submitted

with the petition and any relating files. If the person for whom you are petitioning believes that he or she is eligible for adjustment of status, then he or she

should contact the local USCIS office for more information. Because the person for whom you are petitioning is not eligible to adjust, we have sent the approved

petition to the Department of State National Visa Center (NVC), 32 Rochester Avenue, Portsmouth, NH 03801-2909. NVC processes all approved immigrant visa which

consular post is the appropriate consulate to complete visa processing. NVC will then forward the approved petition to that consulate.

..."

What does it actually mean?

many thanks.

Oww...my brain hurts just reading that. You'd think USCIS would provide a little better explanation.

A little deductive reasoning on my part (more like guessing ) tells me you're probably going to receive an AOS (Affidavit of Support) and IV package from NVC. Meaning that she can't adjust her status but can apply for a immigrant visa, which if approved, will not require Adjustment of Status.

Hopefully someone who's seen or been through this situation will chime in...

My question is will she have to interview at the "consular post" in her home country or somewhere in the US? Exactly where will NVC forward this approved petition to?

George

[NigeriaorBust 4,087]

You are a green card holder and must wait for an available visa number. When that happens then she can have her interview.

[katgrl 14]

You are a green card holder and must wait for an available visa number. When that happens then she can have her interview.

Ditto ^^^ There is no visa number immediately available for spouses of green card holders. There is a visa number immediately available for spouses of USC. So when either a visa number becomes available or once you become an USC, she can adjust status. I am not sure however if overstay is overlooked for spouses of green card holders. (At this point, I do not know what your wife's status is-- when does her I-94 expire?) When will you be able to apply for citizenship?

Edited December 7, 2010 by katgrl

[JimVaPhuong 4,863]

Ditto ^^^ There is no visa number immediately available for spouses of green card holders. There is a visa number immediately available for spouses of USC. So when either a visa number becomes available or once you become an USC, she can adjust status. I am not sure however if overstay is overlooked for spouses of green card holders. (At this point, I do not know what your wife's status is-- when does her I-94 expire?) When will you be able to apply for citizenship?

This is correct. However, her priority date is now current. If she is eligible to adjust status then filing an I-485 would cause USCIS to ask for the petition to be returned from DoS so that the AOS could be adjudicated.

Overstay is not "forgiven" for spouses of LPR's. They must maintain their lawful non-immigrant status in order to be eligible to adjust status.

[ceadsearc 516]

Hello all,

I'm GC holder and filled I130 for my wife. My wife is on F-1 visa.

Is her F-1 still valid? Is she still in school? Or does she have an overstay?

[Alex7 0]

Thanks to everyone for replies.

My wife's F1 visa expired, but her I-20 form NOT, her I-94 is D\S, which I believe means duration of status.

She takes mandatory 12units per semester and all that I believe makes her stay in the US legal.

P.S. Notice date November 30.

Any ideas what is going on?

[Alex7 0]

This is correct. However, her priority date is now current. If she is eligible to adjust status then filing an I-485 would cause USCIS to ask for the petition to be returned from DoS so that the AOS could be adjudicated.

Overstay is not "forgiven" for spouses of LPR's. They must maintain their lawful non-immigrant status in order to be eligible to adjust status.

Correct me if I'm wrong.

Since our priority date is now current we can file I-485, regardless of the notice we received?

[katgrl 14]

Hmmm.... (by the way, yes D/S means duration of stay so as long as she maintains her current student status, her I-94 is good.) I am really unsure why she is ineligible to adjust status according to USCIS then. I would suggest contacting the USCIS office and inquiring for more information. My guess is they think she hasn't maintained her status?

[JimVaPhuong 4,863]

Correct me if I'm wrong.

Since our priority date is now current we can file I-485, regardless of the notice we received?

Her priority date may not have been current when they generated the notice. Yes, you can file the I-485 now. USCIS will have to ask NVC to return the petition before they can adjudicate the I-485. This can take months. I have a friend going through this now with a humanitarian reinstatement and substitute sponsor for a deceased petitioner. It amazes me that USCIS can get an approved petition to NVC in a matter of days, but it takes months to send it the other way.

The expired F-1 visa means she can't leave and reenter the US. The valid I-20 establishes her lawful presence as long as she continues going to school.

[pixie77 2]

A friend of mine got married to a Green Card holder but was told they cannot adjust status until the husband becomes a US citizen...a spouse of a GC holder needs to to be petitioned from her home country...that's what they were told by their lawyer... that's why they waited until he was able to apply for his citizenship and started their USCIS application after that...didn't know though how long after the citizenship they sent in their paper works...

Good luck..!!!

[Alex7 0]

Her priority date may not have been current when they generated the notice. Yes, you can file the I-485 now. USCIS will have to ask NVC to return the petition before they can adjudicate the I-485. This can take months. I have a friend going through this now with a humanitarian reinstatement and substitute sponsor for a deceased petitioner. It amazes me that USCIS can get an approved petition to NVC in a matter of days, but it takes months to send it the other way.

The expired F-1 visa means she can't leave and reenter the US. The valid I-20 establishes her lawful presence as long as she continues going to school.

Notice was issued November 30, her priority date became current December 1, information about that was available in early November.

Is it really possible that they decided that she is not eligible because of 1 day???

[JimVaPhuong 4,863]

A friend of mine got married to a Green Card holder but was told they cannot adjust status until the husband becomes a US citizen...a spouse of a GC holder needs to to be petitioned from her home country...that's what they were told by their lawyer... that's why they waited until he was able to apply for his citizenship and started their USCIS application after that...didn't know though how long after the citizenship they sent in their paper works...

Good luck..!!!

That's not what the immigration law says, and there are lots of spouses and children of LPR's who have adjusted status in the US that proves otherwise. The law only requires that there is an immigrant visa number immediately available to them. If the I-130 is approved and the priority date is current, then there is an immigrant visa number immediately available.

Notice was issued November 30, her priority date became current December 1, information about that was available in early November.

Is it really possible that they decided that she is not eligible because of 1 day???

You bet. The notice was correct on the day it was issued because there was no visa number available on that day.

[Alex7 0]

That's not what the immigration law says, and there are lots of spouses and children of LPR's who have adjusted status in the US that proves otherwise. The law only requires that there is an immigrant visa number immediately available to them. If the I-130 is approved and the priority date is current, then there is an immigrant visa number immediately available.

You bet. The notice was correct on the day it was issued because there was no visa number available on that day.

Ok, after consultation with lawyer decided to file I-485.