How long after marriage do you have to file.

[JimVaPhuong 4,863]

Sounds very strange to me. Any explanation as to why? Where are they drawing the line? Lots of folks file AOS after the 90 days. How long after are they drawing the line?

Some field offices have apparently taken the view that a K1 who adjusts after more than two years of marriage should not adjust to conditional permanent resident under 245(d). They believe that the immigrant should not be considered a conditional permanent resident under section 216 because of the length of the marriage. They use their discretion to deny the AOS, and ask the immigrant to resubmit with an I-130.

FWIW, I've only seen a few reports of this happening. However, someone who has been married more than two years is eligible to adjust to unconditional permanent resident, but only if they submit an I-130. If they adjust based on the K1 then 245(d) forces them to adjust to conditional permanent resident.

[VanessaTony 3,567]

Some field offices have apparently taken the view that a K1 who adjusts after more than two years of marriage should not adjust to conditional permanent resident under 245(d). They believe that the immigrant should not be considered a conditional permanent resident under section 216 because of the length of the marriage. They use their discretion to deny the AOS, and ask the immigrant to resubmit with an I-130.

FWIW, I've only seen a few reports of this happening. However, someone who has been married more than two years is eligible to adjust to unconditional permanent resident, but only if they submit an I-130. If they adjust based on the K1 then 245(d) forces them to adjust to conditional permanent resident.

Jim, when responding to Push I remember the thread about the person that AOS'd (based on K1) after 2 years marriage, got the 10 year card, after 3 years LPR filed for USC and was denied based on some rule that said they were issued with the wrong GC (should have been 2, not 10) and should have ROC'd and because they never ROC'd (why would they they had the 10 year card) they weren't eligible for USC.. do you recall that thread? This seems like a pretty good reason to file the I-130 to me. In fact, I think I remember they (or could be another matter) tried to ROC but kept getting denied because records showed a 10 year card, so they couldn't fix it...

[Harpa Timsah 13,258]

Here is a report of someone who got a 2-year card even though AOS was based on 3 years of marriage (and an approved 129F).

http://www.visajourney.com/forums/topic/276256-late-to-apply-aos/page__p__4210223#entry4210223

[JimVaPhuong 4,863]

There have been VJ members who have reported all sorts of wacky results when an AOS is filed based on a K1 visa after more than two years of marriage. Some have gotten conditional green cards, as INA 245(d) would require. Some have gotten unconditional green cards, as INA 216 would allow. Some have been denied and told to refile with an I-130. I wasn't aware this third scenario was even possible until it happened to a VJ member. It all seems to boil down to which section of the INA the IO wants to focus on.

I would personally recommend anyone in this situation to file an I-130, even if they don't think it's necessary. They're eligible for an unconditional green card, and the I-130 is the only way to get it.

[pushbrk 12,979]

There have been VJ members who have reported all sorts of wacky results when an AOS is filed based on a K1 visa after more than two years of marriage. Some have gotten conditional green cards, as INA 245(d) would require. Some have gotten unconditional green cards, as INA 216 would allow. Some have been denied and told to refile with an I-130. I wasn't aware this third scenario was even possible until it happened to a VJ member. It all seems to boil down to which section of the INA the IO wants to focus on.

I would personally recommend anyone in this situation to file an I-130, even if they don't think it's necessary. They're eligible for an unconditional green card, and the I-130 is the only way to get it.

Well, I guess the other way is to get lucky, so I would agree. I would simply explain the facts and risks and let the folks decide on their own.