Re-filing for AOS following denial

[SHM 0]

I am posting this message on behalf of a friend and am really hoping that someone has some insight on this case.

My friend entered the US on a K-3 visa last year. Her I-94 expires in October 2012. Before she entered the US, her I-129F and I-130 petitions were approved (not sure if this makes any difference). There is no indication that the I-130 approval changed her category to a CR-1 visa -- I don't think it did because she interviewed and received the stamped K-3 months before she was able to enter the US. I think the I-130 may have come after the interview and before she arrived in the US.

She filed for AOS after arriving here. There was some issue with the affidavit of support she submitted and USCIS issued a RFE for more financial evidence. Unfortunately, she did not find a joint sponsor and basically never responded to the RFE. In July 2011, she got a "Notice of Decision" from USCIS saying that they were denying her AOS petition for failure to respond to the RFE.

Immediately after that, I took my friend for a consultation with one of the more reputable immigration firms in our city. The lawyer there told my friend that she can re-file for AOS again and it won't be an issue for her to stay in the US while that process is on-going.

Today, I began downloading the AOS forms from the USCIS website for my friend because she has now found a joint sponsor. My friend's husband, the USC spouse, does not any source of income at the moment. While on the USCIS website, I came across the following information that has me really concerned:

"A K-3 visa holder's authorized stay automatically expires 30 days after any of the following events: USCIS denies or revokes the Form I-130 visa petition, USCIS denies a Form I-485 filed by the K-3 nonimmigrant or Department of State denies the immigrant visa application filed by the K-3 nonimmigrant, Termination of the marriage through divorce or annulment"

My question for the VJ community is whether my friend can still re-file for the AOS? Was the lawyer right that this is a possibility?

[pushbrk 12,883]

I am posting this message on behalf of a friend and am really hoping that someone has some insight on this case.

My friend entered the US on a K-3 visa last year. Her I-94 expires in October 2012. Before she entered the US, her I-129F and I-130 petitions were approved (not sure if this makes any difference). There is no indication that the I-130 approval changed her category to a CR-1 visa -- I don't think it did because she interviewed and received the stamped K-3 months before she was able to enter the US. I think the I-130 may have come after the interview and before she arrived in the US.

She filed for AOS after arriving here. There was some issue with the affidavit of support she submitted and USCIS issued a RFE for more financial evidence. Unfortunately, she did not find a joint sponsor and basically never responded to the RFE. In July 2011, she got a "Notice of Decision" from USCIS saying that they were denying her AOS petition for failure to respond to the RFE.

Immediately after that, I took my friend for a consultation with one of the more reputable immigration firms in our city. The lawyer there told my friend that she can re-file for AOS again and it won't be an issue for her to stay in the US while that process is on-going.

Today, I began downloading the AOS forms from the USCIS website for my friend because she has now found a joint sponsor. My friend's husband, the USC spouse, does not any source of income at the moment. While on the USCIS website, I came across the following information that has me really concerned:

"A K-3 visa holder's authorized stay automatically expires 30 days after any of the following events: USCIS denies or revokes the Form I-130 visa petition, USCIS denies a Form I-485 filed by the K-3 nonimmigrant or Department of State denies the immigrant visa application filed by the K-3 nonimmigrant, Termination of the marriage through divorce or annulment"

My question for the VJ community is whether my friend can still re-file for the AOS? Was the lawyer right that this is a possibility?

Yes, the lawyer was right but perhaps MORE important is that because her visa is no longer valid for a new entry to the USA, she MUST stay until she successfully completes a new adjustment of status process. She's in the same boat as any spouse of a US Citizen who has overstayed their visa. The overstay is forgiven as a courtesy to the US Citizen spouse, at the time the AOS is approved.