Filing for I 130 and I 485 with I 94 expired

[venezoameri 1]

Hello! I have a HUGE PROBLEM! Or at least I think it is!

Let's start from the beginning: Back in 2009 I entered the country with an F1 visa, I was a students and met my husband back then. After I finish my english course i went back to Venezuela May 2010.

My husband asked me to marry him and I came back with my B1 B2 in March 2011, We got married in July 2011 and since my I 94 was about to expire and my son was in Venezuela i decided to fly there, stayed 2 weeks and came back with my son.

So my I 94 is about to expire and so is my son's. We both entered the States last year Sep 2011 with a b1 b2 visa. When they asked me what was I going to do in California I said I was taking him to Disneyland (since a lawyer told us I shouldn't have gone to Venezuela without AOS) so anyway, the immigration officer asked several questions since I had the f1 visa still on my passport and last time I was in the USA was just 2 weeks ago, at the end nothing happened and we are both here in California.

My son is going to school here and I'm a SAHM, we've been procrastinating the AOS because we didn't have the money to do both of the AOS for me and my son.

We'll have the money in 4 weeks but my I 94 expires this weekend so I'm panicking. I just read on USCIS site thatI can't apply to the I485 with an expired I94 so I don't know what to do???

I can't leave the country because then i'll have to use the money for my AOS on plane tickets for my son and I.

Please help me have a piece of mind and tell me if you've filed 130 and 485 with an expired i 94! if it was fine and well if you think I might have problems because even when I entered legally last time I was already married and didn't filed AOS.

Thanks

[Harpa Timsah 13,258]

Overstay is irrelevant/forgiven for spouses of US Citizens, but you clearly entered the US with the intent to immigrate on a non-immigrant visa. What exactly happened at POE? You were questioned in secondary, so they have recorded everything you said. If you lied, you can be denied based on material misrepresentation.

[venezoameri 1]

Overstay is irrelevant/forgiven for spouses of US Citizens, but you clearly entered the US with the intent to immigrate on a non-immigrant visa. What exactly happened at POE? You were questioned in secondary, so they have recorded everything you said. If you lied, you can be denied based on material misrepresentation.

Hi,

At the POE the officer asked a lot of questions but I wasn't questioned in secondary and when he asked what's the purpose of your visit I said we are going to meet my husband in California to go to Disneyland. Which was also truth because we did go to Disneyland. He didn't ask about my husband he just asked. Is your first time here, I said NO, I've been here may times. Then he asked did you attend school here in The US I said yes, he asked where did I study, then he asked when was my last time here I said 2 weeks ago. He asked me what did I do on that visit I said I was traveling with friends (also truth I entered in Miami, FL and left from Los Angeles, CA) he asked which cities I visited, I named them all, and that was it.

But since I was already married when I entered with my b1 b2 visa I don't know if my son and I will have problem with our AOS.

Thanks for your kind response btw

[jdh 103]

Has it not also been said that aos is not denied based on intent alone and barring any other adverse circumstances it will be forgiven?

[venezoameri 1]

I've been seriously researching and reading for the past 4 hours and I think I'm about to lose it. I've read situations of people trying to enter the states on a b1 b2 visa after they were already married to a us citizen and some lawyers say they can't because they'll be immediately deported when they try to enter.

Other lawyers advise not to leave the country because then it can take even longer to do the AOS being in my country. My husband's friend said we can always say my intention was not to immigrate the last time I entered and they can't denied AOS based on that. I don't know! At first I was worried about my I 94 thing but now I'm going crazy after what Harpa Timsah said about me "clearly entered the US with the intent to immigrate on a non-immigrant visa"

Help please

[ValerieA 350]

No, they can't use intent as a reason to deny an AOS application from the spouse of a US citizen, there must be other adverse factors - as Harpa mentioned, material misrepresentation would do it. From what you wrote, you have not misrepresented yourself to border officials, so you should be OK. Do NOT leave the country now until you get your green card, though.

ETA: Do NOT lie to an immigration officer about anything, even about intent. Frankly, you most likely won't even be asked about intent at any stage of this process.

Edited February 28, 2012 by ValerieA

[venezoameri 1]

No, they can't use intent as a reason to deny an AOS application from the spouse of a US citizen, there must be other adverse factors - as Harpa mentioned, material misrepresentation would do it. From what you wrote, you have not misrepresented yourself to border officials, so you should be OK. Do NOT leave the country now until you get your green card, though.

ETA: Do NOT lie to an immigration officer about anything, even about intent. Frankly, you most likely won't even be asked about intent at any stage of this process.

Thank you so much Valerie! I was really about to lose it, I just got off the phone with a lawyer that said exactly the same.

I'll start posting back as soon as we file!

[Wizzle 41]

....I got One word for you....." Relax ".

As long as your marriage is legitimate and you have alot of proofs,along side all you said above about your past visits and place you visited. I believe you should be fine. If you pray, that would be a bonus. Pray about it, Do your paper-work right when you have the money. Overstay is forgiven for Us spouse,so dont stress over expired I-94.

... Again, Gather alot of proofs. Fill your paper works correctly and truthfully attaching all required documentations. This would save you alot of stress & hassle during the interview. Saying you love your husband to the USCIS without solid proofs makes one look like a " Dum-Dum " ...!... You would be "A"...Okay. :-)

Good luck.

Edited March 2, 2012 by Wizzle

[aosapplicant 3]

I am not immigration attorney , this is not legal advice and you are free to act as you choose.

But if you were someone very close to me and cared for you personally my words to you would be: DO NOT FILE AOS!

Expired I-94 is non issue, since you are USC spouse ( I assume you will apply based on marriage, since you ask about I-130 and AOS?).

If you entered on any non immigrant visa, later overstayed, met and married that also would not be an issue.

But it appears that you have met, married, left and then re-entered on non-immigrant visa ALREADY AS A FIANCE/SPOUSE OF USC?

If you get denied you will be referred to immigration court. The ICE will argue that you had clear intention to

defraud and did defraud border officer by concealing a fact of having a USC fiance/spouse (having fiance/spouse in US = intent to immigrate under official regs, period. No ifs/buts about it). If judge sides with ICE (which they very well might and most likely will in your case), you may be permanently barred from ever immigrating to US.

Do not ruin your and your family's future. Go back home and apply for immigrant visa. If you do you will have done nothing wrong. By exiting the country you will prove that indeed you had no intentions to violate your B-1 and defraud border patrol.

It will take few months at most for you to get your immigrant visa and you may even be granted another tourist visa in interim (extremely rare , but MAY occur

in your case, due to strong evidence of good faith intent).

Again, I am not immigration attorney, I do not tell you what to do, but I have read cases where people got permanently barred because of very stupid things they did and didn't know of repercussions. Your future is in your hands.

Please Note: I am not immigration attorney , this is not legal advice. For legal assistance contact qualified Immigration Attorney in good standing .

Edited March 2, 2012 by aosapplicant

[ChrisPG 30]

I am not immigration attorney , this is not legal advice and you are free to act as you choose.

But if you were someone very close to me and cared for you personally my words to you would be: DO NOT FILE AOS!

Expired I-94 is non issue, since you are USC spouse ( I assume you will apply based on marriage, since you ask about I-130 and AOS?).

If you entered on any non immigrant visa, later overstayed, met and married that also would not be an issue.

But it appears that you have met, married, left and then re-entered on non-immigrant visa ALREADY AS A FIANCE/SPOUSE OF USC?

If you get denied you will be referred to immigration court. The ICE will argue that you had clear intention to

defraud and did defraud border officer by concealing a fact of having a USC fiance/spouse (having fiance/spouse in US = intent to immigrate under official regs, period. No ifs/buts about it). If judge sides with ICE (which they very well might and most likely will in your case), you may be permanently barred from ever immigrating to US.

Do not ruin your and your family's future. Go back home and apply for immigrant visa. If you do you will have done nothing wrong. By exiting the country you will prove that indeed you had no intentions to violate your B-1 and defraud border patrol.

It will take few months at most for you to get your immigrant visa and you may even be granted another tourist visa in interim (extremely rare , but MAY occur

in your case, due to strong evidence of good faith intent).

Again, I am not immigration attorney, I do not tell you what to do, but I have read cases where people got permanently barred because of very stupid things they did and didn't know of repercussions. Your future is in your hands.

Please Note: I am not immigration attorney , this is not legal advice. For legal assistance contact qualified Immigration Attorney in good standing

Firstly, the OP is well within her rights to seek permission to enter the U.S. on a non-immigrant visa, even though she has a U.S. Spouse-- there is nothing illegal about this act alone; it is only illegal to enter on said visa, with the *intent* of adjusting status and just having a U.S. citizen spouse is not proof of intent.

Secondly, how do you know that she misrepresented her case to the CBP Official at her port of entry? If the OP was asked at the time of her entry if she had a U.S. citizen spouse, and answered "Yes" and was then admitted into the country, then where was the misrepresentation/fraud as you say?

Again, I don't have the facts to this case and I am just playing Devil's Advocate with your response.

Edited March 3, 2012 by ChrisPG

[venezoameri 1]

....I got One word for you....." Relax ".

As long as your marriage is legitimate and you have alot of proofs,along side all you said above about your past visits and place you visited. I believe you should be fine. If you pray, that would be a bonus. Pray about it, Do your paper-work right when you have the money. Overstay is forgiven for Us spouse,so dont stress over expired I-94.

... Again, Gather alot of proofs. Fill your paper works correctly and truthfully attaching all required documentations. This would save you alot of stress & hassle during the interview. Saying you love your husband to the USCIS without solid proofs makes one look like a " Dum-Dum " ...!... You would be "A"...Okay. :-)

Good luck.

Thank you! Yes I'm much more calm after the responses I got from here

[venezoameri 1]

I am not immigration attorney , this is not legal advice and you are free to act as you choose.

But if you were someone very close to me and cared for you personally my words to you would be: DO NOT FILE AOS!

Expired I-94 is non issue, since you are USC spouse ( I assume you will apply based on marriage, since you ask about I-130 and AOS?).

If you entered on any non immigrant visa, later overstayed, met and married that also would not be an issue.

But it appears that you have met, married, left and then re-entered on non-immigrant visa ALREADY AS A FIANCE/SPOUSE OF USC?

If you get denied you will be referred to immigration court. The ICE will argue that you had clear intention to

defraud and did defraud border officer by concealing a fact of having a USC fiance/spouse (having fiance/spouse in US = intent to immigrate under official regs, period. No ifs/buts about it). If judge sides with ICE (which they very well might and most likely will in your case), you may be permanently barred from ever immigrating to US.

Do not ruin your and your family's future. Go back home and apply for immigrant visa. If you do you will have done nothing wrong. By exiting the country you will prove that indeed you had no intentions to violate your B-1 and defraud border patrol.

It will take few months at most for you to get your immigrant visa and you may even be granted another tourist visa in interim (extremely rare , but MAY occur

in your case, due to strong evidence of good faith intent).

Again, I am not immigration attorney, I do not tell you what to do, but I have read cases where people got permanently barred because of very stupid things they did and didn't know of repercussions. Your future is in your hands.

Please Note: I am not immigration attorney , this is not legal advice. For legal assistance contact qualified Immigration Attorney in good standing .

Thanks for your opinion I've contacted a good well known immigration lawyer from the San Diego Area and his advise was to stay here and file for my AOS from here. He said it is not likely for me to have problems during the interview because of this. I thought his advise was really honest and I took it!

[aosapplicant 3]

Firstly, the OP is well within her rights to seek permission to enter the U.S. on a non-immigrant visa, even though she has a U.S. Spouse-- there is nothing illegal about this act alone; it is only illegal to enter on said visa, with the *intent* of adjusting status and just having a U.S. citizen spouse is not proof of intent.

Secondly, how do you know that she misrepresented her case to the CBP Official at her port of entry? If the OP was asked at the time of her entry if she had a U.S. citizen spouse, and answered "Yes" and was then admitted into the country, then where was the misrepresentation/fraud as you say?

Again, I don't have the facts to this case and I am just playing Devil's Advocate with your response.

Case precedent and discretion of adjudicating officer will matter greatly in such case. Officer, while not allowed to capriciously and arbitrarily deny cases, has, nevertheless, a great deal of authority vested in him her to decide whether the applicant had the intent to stay past non imm. entry in described case.

Having a fiance/spouse in USA by LAW (under US INA and CFR) gives basis to presume an immigrant intent, regardless of what you tell anyone.

She can prove her good faith intention by exiting, but requesting AOS will automatically trigger "you had intent to.." presumption.

Defrauding is in preconceived intent to stay (having a fiance/spouse in US is defined as intention to stay under C.F.R. and if she told Border Officer that she has fiance/spouse here then that Border Officer has failed to do his her job by letting non-immigrant in with clearly defined under C.F.R presumption of Immigrant Intention, unless she had declared of her intention prior to obtaining her visa and was able to overcome presumption back then, extremely rare but theoretically possible ), and unless she leaves now this will weigh heavily against her.

The only way she may adjust is under 60 day rule, which is a famous court ruling that had set precedent (came with provable, zero intentions to immigrate , with no fiance or husband here, but circumstances changed afterwards), however this would apply to her if she met her fiance/husband AFTER entering (ex. if she met. married and applied after entering first time and never went back and return another visa while already having fiance with whom she subsequently married.

It doesn't appear to be the case according to what she wrote).

I do not play Devils or Gods' advocate here,I just use logic, common sense, knowledge of statutes (admittedly very limited at that, since I am not an attorney) and share my individual view, noting also that I am not an attorney and couldn't care less what OP will do, but what I wrote is what I would suggest to someone I personally cared for.

Edited March 3, 2012 by aosapplicant

[Harpa Timsah 13,258]

60 day rule is totally bunk and not a rule at all. if you think that's a rule then I'd read up more.

[aosapplicant 3]

60 day rule is totally bunk and not a rule at all. if you think that's a rule then I'd read up more.

60 day rule, regardless of what you or I think of it, is a rule (actual ruling by a Judge sitting on bench and in charge of interpreting a law).

It is not written in stone, but serves as a basic frame upon which many assumptions are construed and decisions made.

In any event, the "60 day rule" is irrelevant here since she had known her fiance before she stepped her foot on US.

I do not want to sound rude, but may be you should indeed read up more.