Missed filing for AOS, 2 yr K3 Entery expired 10 months ago

[SA-&-BA 0]

Hi all,

I am in bit of a situation... My wife came at K3 and was granted 2 years entry on the visa upon entry. It has been 34 months since she's been here and for personal reasons we were not able to file for AOS. We are planning to file now but I am wondering what issues we can encounter and what steps we have to take:

I-130 was filed and was approved - we have the copy of approved I-130

K3 was filed and visa was granted (we opted for k3 instead of waiting for green card)

She entered US on K3.

Thanks in advance.

[Inky 1,110]

Whats the issue? just file for AOS right now. Or is there some reason why you cant file and thats why you never filed in 2 years?

[Imagination 15]

Just file now. You will have to explain your reason for not filing on time. If its a good reason, they might accept it.

Adjustment of Status is one way to obtain permanent residency. Permanent residency based on marriage to a United States citizen for less than two years at the time of filing for adjustment of status is conditional permanent residency. No later than two years from the anniversary of the grant of permanent residency as shown on the permanent resident card, the conditional permanent resident must file a form I-751 to remove the conditions. The form I-751 must be filed no earlier than 90 days prior to the expiration date of the card. A late filing will not be accepted unless there is a suitable explanation showing good cause for the late filing. A failure to file timely causes permanent residency and all of its benefits to lapse and renders the former permanent resident without status and subject to removal (deportation). The principal purpose of the I-751 is to satisfy the immigration authorities that the marriage was bona-fide and not entered into solely as a sham for immigration benefits. There is an expectation that the parties will still be married at the conclusion of the two year period. However, in the event of divorce before the expiration of the two year period, a waiver may be filed using the form I-751. Parties who are separated or in the process of divorce which is not final by the time that an I-751 is due are not eligible to have the conditions on permanent residency removed and are thus deportable. However, successive I-751's are permissible so long as late filing is justifiable for "good cause" and waivers can be filed for and obtained right up to a final removal order.

http://www.messinglawoffices.com/adjustment_of_status.aspx Edited April 1, 2012 by Imagination

[Harpa Timsah 13,258]

Ugh. The OP is not talking about form I-751. The quoted above is not relevant.

[JimVaPhuong 4,863]

Just file now. You will have to explain your reason for not filing on time. If its a good reason, they might accept it.

http://www.messinglawoffices.com/adjustment_of_status.aspx

You're thinking of removal of conditions. The OP is talking about adjustment of status.

[SA-&-BA 0]

Can we also file for AP - granting the fact that my spouse's entery expired year ago. I read that if someone is 180 days or more without status than they would be barred for a year to 3 years? does that apply to applying for AOS based on k3/I130?

thanks in advance

[ceadsearc 516]

Can we also file for AP - granting the fact that my spouse's entery expired year ago. I read that if someone is 180 days or more without status than they would be barred for a year to 3 years? does that apply to applying for AOS based on k3/I130?

thanks in advance

It applies for anyone who has been out of status 180+ days, so don't bother with AP.

[JimVaPhuong 4,863]

It applies for anyone who has been out of status 180+ days, so don't bother with AP.

Agreed. USCIS sets an unintentional trap here. The AP would be approved because the applicant isn't inadmissible at the time of the application. However, the applicant would become inadmissible as soon as they left the US and incurred the 3 year (or 10 year) bar, which would nullify the AP. USCIS has their hands tied here because they know they can't deny the AP, and they also know that the applicant can't actually use the AP without incurring a ban. About all they can do is warn you about this in the form instructions, which they do.

[SA-&-BA 0]

Okay, I guess we should steer clear from AP and stay put until we get her AOS approved unless there's a $$$ that can be paid in lieu of being barred (any thoughts?)

The 485 fee includes the AP filing fee, I am told. Do we get to deduct AP fees from $1010.00?

I believe the AP fee is $305 if applied separately.

Thanks

[KayDeeCee 4,893]

Okay, I guess we should steer clear from AP and stay put until we get her AOS approved unless there's a $$$ that can be paid in lieu of being barred (any thoughts?)

The 485 fee includes the AP filing fee, I am told. Do we get to deduct AP fees from $1010.00?

I believe the AP fee is $305 if applied separately.

Thanks

The fee for the I-485 is $1070. When an EAD and/or AP form is filed with the I-485 the fees for those 2 forms are waived. There is nothing to deduct. The I-485 is $1070 with or without the EAD and/or AP.

[ceadsearc 516]

The fee for the I-485 is $1070. When an EAD and/or AP form is filed with the I-485 the fees for those 2 forms are waived. There is nothing to deduct. The I-485 is $1070 with or without the EAD and/or AP.

This. There is also nothing you can pay or file to avoid the bar. You can't leave until the GC arrives.

[SA-&-BA 0]

This. There is also nothing you can pay or file to avoid the bar. You can't leave until the GC arrives.

Thanks eveyone for your expert advice and comments.