AOS (I 485) after receiving NOA 2 of I 130

[ekgeo 0]

My wife and I got married in another country a year ago but we were a couple for several years already. My wife has a 10 year multiple entry B1/B2 visa. After I received my US citizenship, I submitted her I 130 last October 2010. I already received NOA 1 last november but I have not yet received NOA 2 as of today (december 2010). My wife went here on the first week of december and will be here until January to spend christmas and new year with me. I just found out recently that there was such a thing as AOS. I read an excerpt in the I 130 guide for citizens that: "If your husband or wife, unmarried child under 21 years, or parent is already in the United States after having entered legally, they can apply to adjust their status to permanent resident at the same time you file their I-130 petition."

I would like to know whether she can just adjust her status as a permanent resident while here if we receive NOA 2 instead of going back home since she was given by the immigration officer 6 months to legally stay here in the US. Her initial intent of going here was to spend time with me but now that she was here, of course we could not help but check options whether she can adjust her status legally to permanent resident while here. If possible, we do not want to be separated anymore after a 5 year long distance relationship. According to the I 485 guide: " you may apply to adjust status if an immigrant visa number is readily available to you based on an approved immigrant petition ".

I am just not sure whether our case is qualified for I 485.

[Harpa Timsah 13,258]

I know of one VJ member who ended up doing what you suggest. She came to visit the US and then their plans changed and she stayed and filed her 485 based on the I-130 approval. As always, if you intend to do this from out of country, then you would be committing visa fraud, but it sounds like you genuinely did not plan to go this route, and your wife was planning on returning when she entered on her tourist visa. It's risky, but it has been done. I am not sure how much more risky it is in comparison to a normal concurrent 130/485 application. Good luck.

[ekgeo 0]

I know of one VJ member who ended up doing what you suggest. She came to visit the US and then their plans changed and she stayed and filed her 485 based on the I-130 approval. As always, if you intend to do this from out of country, then you would be committing visa fraud, but it sounds like you genuinely did not plan to go this route, and your wife was planning on returning when she entered on her tourist visa. It's risky, but it has been done. I am not sure how much more risky it is in comparison to a normal concurrent 130/485 application. Good luck.

Thanks for sharing! I know this is riskier compared to when she returns to her home country and continue the processing. At first, we were already thankful because she was still given the opportunity to enter US and spend the holidays with me but of course, if you are already with your wife, you do not want to be separated even for just a short time. I'm hoping to hear more VJ members' experiences similar to my case or opinions regarding my case.

If this wouldn't work out then we have no choice but to be geographically separated again for a couple of months...=(

[ValerieA 350]

I know of one VJ member who ended up doing what you suggest. She came to visit the US and then their plans changed and she stayed and filed her 485 based on the I-130 approval. As always, if you intend to do this from out of country, then you would be committing visa fraud, but it sounds like you genuinely did not plan to go this route, and your wife was planning on returning when she entered on her tourist visa. It's risky, but it has been done. I am not sure how much more risky it is in comparison to a normal concurrent 130/485 application. Good luck.

That would be me! The only question I was asked about my entry was when it was, and what visa I entered on. The impression I got at my interview was that I was basically pre-approved. My process took about 3.5 months, from filing the I-485 to approval.

ETA: I filed the I-485 with the approval notice of the I-130...let me go back in my files, I think that is how you have to do it. I ended up overstaying due to personal reasons, but not over the 180 days allowed before filing the I-485.

Edited December 28, 2010 by ValerieA

[Harpa Timsah 13,258]

Hi Valerie! Thanks for chiming in!

[ekgeo 0]

That would be me! The only question I was asked about my entry was when it was, and what visa I entered on. The impression I got at my interview was that I was basically pre-approved. My process took about 3.5 months, from filing the I-485 to approval.

ETA: I filed the I-485 with the approval notice of the I-130...let me go back in my files, I think that is how you have to do it. I ended up overstaying due to personal reasons, but not over the 180 days allowed before filing the I-485.

Thanks Valerie! I would just like to ask, when you received your NOA 2, was it indicated in the letter whether you can adjust status in the US or in your home country? Since my wife's intended visit here was temporary, her address in the I 130 form was still in her home country. I am not sure whether her case will automatically be forwarded to NVC or will she be given an option whether she can process it here in US or in her home country. Since if USCIS forwards the case to NVC then she needs to leave US and continue the process in her country. I am not sure how the processing goes after approval.

[NigeriaorBust 4,087]

If you submitted your I130 in October you are a ways from getting your approval. They are currently working July petitions.

[ValerieA 350]

Sorry, my mind must have been muddled last night. The I-130 was not approved until my I-485 was. I sent a copy of the NOA2 for it with my AOS package. Because I had started the K-3/CR-1 processing, the I-130 was at NVC. I had thought that might delay my case, with them having to send the I-130 back to match up with my package, but nope. My timelines pretty much matched those of everyone else in my filing month.

Don't worry excessively about having started one process and switching to another; it went smoothly for me, although I stressed that it wouldn't. Note that the I-130 we filed used my Canadian address and everything too, as our intention was to do a K-3 until they took that option away. The thought that our lawyer had (and it made sense to me) was that we obviously planned on doing a K-3/CR-1 since we paid all the fees for it, up to and including the NVC stage.

[ValerieA 350]

I'm going to give up now. I finally found my NOA2 (argh my filing system is shite, gotta fix that before filing ROC) and it IS the approval of the I-130. It took from Oct 2009 to Feb 2010 to get the approval.

[ekgeo 0]

I'm going to give up now. I finally found my NOA2 (argh my filing system is shite, gotta fix that before filing ROC) and it IS the approval of the I-130. It took from Oct 2009 to Feb 2010 to get the approval.

Thanks Valerie! after reading i 485 instructions several times, i found out that we can file even if we only have noa 1 (form 797c). The fact that we can file using a receipt means the more we can also file using noa 2. before, i thought that i1485 and i 130 must be filed concurrently or else you must wait for noa2 before filing i 485. your experience gave us confidence that aos is possible even at the latter stage of the process. What my wife and I worry right now is whether we can prove to the IO during the interview that her initial intention of entering US was not to immigrate . It was just a couple of weeks after she entered US when we found out that AOS is possible after realizing that we cannot endure separation anymore.

[ValerieA 350]

Careful, I think you do need the NOA2 for the I-130 (approval)...

a. An immigrant petition giving me an immediately available immigrant visa number that has been approved. (Attach a copy of the approval notice, or a relative, special immigrant juvenile, or special immigrant military visa petition filed with this application that will give you an immediately available visa number, if approved).

To me, you need one of two things according to the above: an approval notice, OR a copy of a petition FILED WITH THIS APPLICATION that, if approved, gives you a number. I filed my NOA2 with mine. I recollect someone in Alaska that ended up moving back to the UK with her husband, because of a denial, possibly because she did not include an NOA2 with her I-485 application (or send it in responding to the RFE).

Link to topic

[Harpa Timsah 13,258]

Valerie, your quote says "attach a copy of the approval notice, or a relative...petition filed with this application that will give you an immediately available visa number, if approved."

I know the meaning of that sentence is extremely opaque; I have stared and stared at that thing myself! lol

OP: You can attach a copy of your NOA1 with the I-485. Current member USUY had to do that for different reasons, but was successful getting their pending I-130 matched up with their I-485 when they sent in the 485 after the I-130 was already initially accepted, but not approved. Good luck.

[ValerieA 350]

Thanks Harpa! I haven't heard of anyone recently doing this, so I could only go back to the couple of cases last summer that had issues, although we couldn't pinpoint that it was because of them filing the I-130 separately.

Just my opinion, based on grammatical rules: that sentence is 2 separate options, read as follows:

Option 1:

Attach a copy of the approval notice

option 2:

Attach a relative, special immigrant juvenile, or special immigrant military visa petition filed with this application that will give you an immediately available visa number, if approved

However, I do not expect government agencies to understand proper English.

Edited December 30, 2010 by ValerieA

[Harpa Timsah 13,258]

Exactly; I think that is how they meant it to be read, but it is written really YUCK! Maybe I can recast that sentence and then ask the gov to give me some money for copyediting. Though, to be sure, I'd have to write more carefully then I do on VJ! lol

[ValerieA 350]

Exactly; I think that is how they meant it to be read, but it is written really YUCK! Maybe I can recast that sentence and then ask the gov to give me some money for copyediting. Though, to be sure, I'd have to write more carefully then I do on VJ! lol

I sometimes look back at what I wrote and smack my head for stupid errors. Always after the 5 minute grace period for editing, of course. I don't know how many times I have written me for my anymore. Sigh.

Hey, I've already re-written it for you! I want some of the proceeds! 92.5% sound about right?