Adjustment of Status Denied For 2 Day Error

[Moomin 292]

Since they will need to file the I-130, I-485, G-325, I-765..so does that mean she will need a new medical (I-693)?

Will the medical also be needed for the children?

If the current medical has expired then yes, a new medical is needed. It is usually valid for 12 months. Same goes for the kids.

It utterly sucks that you did not get married within the 90 days however that is not anything you can negociate with USCIS. You can't waive it and even if you appealed their decision, you wouldn't win since it's on your shoulders, and both you and your fiancee signed several papers throughout the K1 process attesting you indeed would get married within 90 days. File the I-130 and I-485(and supporting forms including EAD) ASAP. As someone else mentioned, the current EAD is no longer valid no matter what it says on the EAD. The "check immigration status" triumphs what is written on the EAD itself.

[brian99 1]

I'm overwhelmed by the good advice here and won't be wasting my time/money on an immigration attorney.

There are two step children who were 12 & 8 when then arrived and have not yet passed a birthday.

Fortunately, we hadn't applied for AOS for them yet. We did my wife first since she arrived somewhat ahead of the kids.

[bsd058 296]

For people who are worried about this in the future (for instance, if you already set the date and didn't realize it was later than the 90 days), a possible solution could have been to get married by a judge before the wedding and then to have the ceremony afterwards when originally planned so as to not disappoint the family or ruin any plans.

Hind-sight is 20/20, though.

Edited June 22, 2012 by bsd058

[Penny Lane 8,159]

I'm overwhelmed by the good advice here and won't be wasting my time/money on an immigration attorney.

Good! This is easily something you can fix yourself, with the help of VJ. This place is an amazing resource.

[JimVaPhuong 4,863]

I'm overwhelmed by the good advice here and won't be wasting my time/money on an immigration attorney.

There are two step children who were 12 & 8 when then arrived and have not yet passed a birthday.

Fortunately, we hadn't applied for AOS for them yet. We did my wife first since she arrived somewhat ahead of the kids.

Ok. The reason I asked about their age is because there are different rules depending on what visa category they are adjusting status under. If they are adjusting status as derivatives of the original I-129F petition (K2) then the requirement is that they must have entered the US before they were 21. That's no longer possible because you didn't marry their mother within 90 days of her entry. They need a new petition to base their adjustment of status on, and that means filing an I-130 for each of them. Their new visa category is CR2, and the requirement is that the parent/step-child relationship must have been established before they were 18; i.e., you must have married their mother before they were 18.

In other words, if they had been under 21 when they entered the US, and over 18 when you married their mother, then you wouldn't be able to submit an I-130 for them. They'd have to leave the US.

[bigdog 376]

You can always consult an attorney or other civic organization to get further advice of needed. Sorry the 90 day rule is very rigid, I guess you found VJ too late, better late than never. Good luck with your family. Personally I would spend what ever was needed to keep my family here.

[rin and john 71]

I think kids adjusting with parent get a discount on the I-485. It's in the instructions.

Correct. Definitely do as others suggest and file the I-130/I-485 concurrently (all gets mailed to the Chicago Lockbox address).

Fees for wife:

I-130: $420

I-485: $985 + $85 for biometrics

Total: $1,490

Fees for each child:

I-130: $420

I-485: $635 if filed at same time as parent. $985 if filed at any other time. No biometrics for children under the age of 14.

Total: $1,055 per child

Total for all: $3,600 if done together; add another $700 if you wish to wait until later to file for the children.

As someone else mentioned, filing later for the children may cause problems when registering for school. We live in TN and proof of legal presence was required at time of registration.

Re-submit the I-765 at the same time as it is free when submitted with the I-485.

John

[del-2-5-2014 1,339]

Moved from K1 Process & Procedures to Adjustment of Status from Family Based Visas forum; topic is related to AOS process.

Is there a possibility tha tyou can leave a copy of the origianl post in K1 section since this is crucial to K1 folks to know?

I've said it once and I'll say it again, and much to the changrin of some, folks should AOS as soon as the timelines permit.

[Ryan H 3,812]

Is there a possibility tha tyou can leave a copy of the origianl post in K1 section since this is crucial to K1 folks to know?

When I moved the thread, a link to this thread was left in the K1 forum. People looking through the K1 forum will be able to click on this thread and read it.

[Que Saudade 284]

Just another small piece of information. She can't leave the US until the new process is completed. Once she leaves, she has no legal way to re-enter, except re-filing for a spousal visa(but please read on). The K1 was a one time entry. Currently, she is out of status. As she is currently out of status, the clock has started ticking on the unlwaful presence (not meaning in a bad way, that is how USCIS words it), if more than 180 days of unlawful presence occurs before filing the AOS, then they will become inadmissible on the day they leave the United States because of their accumulated unlawful presence. They also would incur a 3 year ban. JimVaPhuong has posted extensively on this. However, once the "new" I-485 is approved, all is forgiven and there are no worries after that. She can leave and re-enter legally as she will have LPR status. As others have pointed out, do not worry about deportation, you just have to file again...unfortunately.

Best of luck with the rest of your journey.

[aaron2020 11,651]

Just another small piece of information. She can't leave the US until the new process is completed. Once she leaves, she has no legal way to re-enter, except re-filing for a spousal visa(but please read on). The K1 was a one time entry. Currently, she is out of status. As she is currently out of status, the clock has started ticking on the unlwaful presence (not meaning in a bad way, that is how USCIS words it), if more than 180 days of unlawful presence occurs before filing the AOS, then they will become inadmissible on the day they leave the United States because of their accumulated unlawful presence. They also would incur a 3 year ban. JimVaPhuong has posted extensively on this. However, once the "new" I-485 is approved, all is forgiven and there are no worries after that. She can leave and re-enter legally as she will have LPR status. As others have pointed out, do not worry about deportation, you just have to file again...unfortunately.

Best of luck with the rest of your journey.

Just adding to this.

Your wife is now a K-1 visa overstay. This means she cannot use Advance Parole to return to the US if she leaves before getting her green card. If she had not overstayed her K-1 visa by those pesky 2 days, she could have used Advance Parole. Now, she needs to have her green card before she leaves the US if she wants to return.

[VanessaTony 3,567]

Just adding to this.

Your wife is now a K-1 visa overstay. This means she cannot use Advance Parole to return to the US if she leaves before getting her green card. If she had not overstayed her K-1 visa by those pesky 2 days, she could have used Advance Parole. Now, she needs to have her green card before she leaves the US if she wants to return.

This is incorrect. She can use her NEW AP (the one she'll get from this new filing) as long as she hasn't accrued enough time for a ban, which 2 days is not. She'll be fine to use it.

Ok. The reason I asked about their age is because there are different rules depending on what visa category they are adjusting status under. If they are adjusting status as derivatives of the original I-129F petition (K2) then the requirement is that they must have entered the US before they were 21. That's no longer possible because you didn't marry their mother within 90 days of her entry. They need a new petition to base their adjustment of status on, and that means filing an I-130 for each of them. Their new visa category is CR2, and the requirement is that the parent/step-child relationship must have been established before they were 18; i.e., you must have married their mother before they were 18.

In other words, if they had been under 21 when they entered the US, and over 18 when you married their mother, then you wouldn't be able to submit an I-130 for them. They'd have to leave the US.

Jim quick qn... the OP's wife "entered with immigrant intent", as is the purpose of the K1. So even though I know she'll be fine to AOS, why is she fine? Immigrant intent has already been proven so shouldn't she technically be denied based on that? She WON'T be but I wondered why not...

[SOflaherty 40]

Jim quick qn... the OP's wife "entered with immigrant intent", as is the purpose of the K1. So even though I know she'll be fine to AOS, why is she fine? Immigrant intent has already been proven so shouldn't she technically be denied based on that? She WON'T be but I wondered why not...

Pretty sure it's in the rules that intent alone is not a reason to deny AOS so long as the case would otherwise normally be approved.

[VanessaTony 3,567]

Pretty sure it's in the rules that intent alone is not a reason to deny AOS so long as the case would otherwise normally be approved.

See where I thought the rules said the ASSUMPTION of intent alone isn't reason enough, but I thought proof of intent (given she entered on a k1 evidence is pretty strong) they had to deny because entering on a non-immigrant visa (which the K1 is) with intent to adjust is illegal... but then that's a K1's purpose, but the op isn't adjusting based ON the K1... again she WILL be fine, it's just interesting...

[Harpa Timsah 13,258]

See where I thought the rules said the ASSUMPTION of intent alone isn't reason enough, but I thought proof of intent (given she entered on a k1 evidence is pretty strong) they had to deny because entering on a non-immigrant visa (which the K1 is) with intent to adjust is illegal... but then that's a K1's purpose, but the op isn't adjusting based ON the K1... again she WILL be fine, it's just interesting...

Um, the K1 visa allows for immigrant intent. She's adjusting from a K-1. That's all. She can't adjust based on an approved I-129F and marriage within the 90 days (category C). Adding a I-130 doesn't make it that she can't have intent. Her visa still stands.

And, speaking of her visa still having precedence... this would only work if she married the petition (which she did).