Is filing before visa expires a MUST?

[cbunny 1]

Hi Everyone thanks for all your help so far...

With previous conversations it's been obvious that my husband's (US citizen/sponsor) and my assets are not enough to complete the affidavit successfully. Since I wont be able to work after April 5th (my TN visa ends that day) I cannot include my income either.

So he needs to go back to work. My question is... how much will it hurt my application if we file after my visa expires on April 5th and I'm out of status? The plan would be to wait until he gets a job and then send the papers in with a stronger Affidavit.

Would a better option be to file right away, with the affidavit not being enough and as soon as he gets a job add this info to the application? Is that even possible?

[Harpa Timsah 13,258]

If you file now without a suitable sponsor for the affidavit, then they will send you a Request for Evidence (RFE). You have a limited amount to respond, or they will deny your case. If your husband hasn't gotten a job by then for some reason, your case would be denied. I think that route is extremely risky.

Even if he finds a job right now, they might still ask for a co-sponsor, because his income will be extremely new. Usually they go by current income, but a new job that is only a month old might not cut it.

I strongly suggest finding a co-sponsor now and resting easy.

Edit: An affidavit doesn't need to be "strong," it just needs to meet the 125% poverty line requirements. It is a pass/fail thing.

Edited March 21, 2012 by Harpa Timsah

[cbunny 1]

Ok, so what if we wait until he gets a job, get an employment letter and also show all our savings? about $20,000-25,000?

I understand an affidavit can't be strong or weak, I was just referring to that fail/pass mode.

[Little_My 464]

Your savings/assets have to be 3 times the missing amount to meet the minimum poverty limit - so, for example, if you are $5,000 short from the minimum annual income required under the poverty line guideline, you would have to show $15,000 in savings/assets to make up for the missing amount. So, in your case, since the minimum annual income for two people is around $18,000/year (can't recall the exact amount), if his annual income is $11,000 and he was therefore around $7,000 short, savings of roughly $21,000 would make up for that missin amount.

[cbunny 1]

Your savings/assets have to be 3 times the missing amount to meet the minimum poverty limit - so, for example, if you are $5,000 short from the minimum annual income required under the poverty line guideline, you would have to show $15,000 in savings/assets to make up for the missing amount. So, in your case, since the minimum annual income for two people is around $18,000/year (can't recall the exact amount), if his annual income is $11,000 and he was therefore around $7,000 short, savings of roughly $21,000 would make up for that missin amount.

Yes, I understand that math... I don't think that'll be such a problem.

Still the question is... is it TERRIBLY WRONG, or will it affect us terribly if we send all our papers AFTER my visa expires... will that be held against me/us?

I talked to an immigration lawyer a month ago, and she didn't seem to think that it would be the end of the world if we filed a couple weeks or months after my visa expires. But I'd like to know your opinion

[Harpa Timsah 13,258]

No, overstay is irrelevant/forgiven for spouses of US Citizens who adjust in-country. However, each day you overstay you will be accumulating days of illegal presence, so if something happens and your plan doesn't go through, you will have a ban on your head, which will be triggered when you leave. Avoiding this situation if possible is the best thing. What if you wait here a year and then you guys decide you want to move abroad because of a great photography gig? But you overstayed here a year... you'd have to either say no to the job so you can AOS and get a GC to avoid the ban, or you'd have to leave and get a 10-year ban from reentering.

I think you will have to get a co-sponsor anyway, so I think putting it off for a few months won't achieve the results you seek.

[cbunny 1]

No, overstay is irrelevant/forgiven for spouses of US Citizens who adjust in-country. However, each day you overstay you will be accumulating days of illegal presence, so if something happens and your plan doesn't go through, you will have a ban on your head, which will be triggered when you leave. Avoiding this situation if possible is the best thing. What if you wait here a year and then you guys decide you want to move abroad because of a great photography gig? But you overstayed here a year... you'd have to either say no to the job so you can AOS and get a GC to avoid the ban, or you'd have to leave and get a 10-year ban from reentering.

I think you will have to get a co-sponsor anyway, so I think putting it off for a few months won't achieve the results you seek.

Well, I wouldn't wait even a month to send the papers.... I just really really really dont want to get a co-sponsor... sniff

[cbunny 1]

Well, I wouldn't wait even a month to send the papers.... I just really really really dont want to get a co-sponsor... sniff

In any case... if we def had to get a co-sponsor... does that person have to be a US citizen?

[Little_My 464]

I-864 Instructions, under "What is a Joint Sponsor":

If the person who is seeking the immigration of one or more of his or her relatives cannot meet the income requirements, a "joint sponsor" who can meet the requirements may submit a Form I-864 to sponsor all or some of the family members. A joint sponsor can be any U.S. citizen, U.S. national, or lawful permanent resident who is at least 18 years old, domiciled in the United States, or its territories or possessions, and willing to be held jointly liable with the petitioner for the support of the intending immigrant. A joint sponsor does not have to be related to the petitioning sponsor or the intending immigrant

Also, I totally agree with Harpa. You don't want to postpone AOS any more than you absolutely have to. However, if you are literally talking about filing within a few weeks from when your current visa expires, that will not be the end of the world nor will it be long enough to incur a ban. It also won't be held against you in your interview.

Edited March 21, 2012 by Little_My

[Harpa Timsah 13,258]

Little_My (or anyone): What is your opinion on the chances of getting an affidavit approved based on a job that is only a month old? I know they go by current income, but an extremely new job seems likely to fail to me. The OP is considering getting a quickie job to qualify and I think that won't work anyway. Your thoughts?

[Little_My 464]

I agree. I could see a new job working our for an affidavit of support in a situation where A) the sponsor can show a track record of steady income over the minimum requirement, in which case there would be a reason to assume that even though the current job is new, the income will continue on the same level as it has been from previous jobs, or B) the sponsor has signed a contract for a permanent position for a period of 2 years or more, and can produce this contract. If it is a new, fairly low-paying job, with no permanent contract and no guarantees for future, and if the sponsor can't show steady income from other jobs pre-dating this new job, I think it is highly likely USCIS would send an RFE for the I-864.