Confused about Adjustment of Status

[Nigerienne31 0]

Hello!

New here so....

My husband traveled to the US from Niger with a tourist visa before we met. We met here in the US and dated for 3 months and then decided to get married. We married on June 22nd and are expecting a baby in December. His tourist visa expires very soon so we need to do an adjustment of status to keep him here in the us. He also would need a work permit so that he can work. Which form do we use? Does he need a spousal visa considering that he is currently in the US? Or do we just do an adjustment of status and not a visa?

[Penguin_ie 5,996]

*** Moving from AOS from Family Visa to AOS from Tourist Visa ****

Our Guide here should answer your questions: http://www.visajourney.com/content/i130guide2

[Nigerienne31 0]

Thank you! That's very helpful!

But there is a scary disclaimer at the beginning of that page.

We would qualify for an I-130 if:

If I am already married, and my spouse came to the US on a tourist visa without the intent of immigration and marriage, right?

[Harsh_77 718]

If questioned during the AOS then he / you will have to prove he did not have immigrant intent.

Specially on tourist visa it is a difficult thing to prove coz when he entered US he had showed he had vested interest in going back to his country, which suddenly vanished upon meeting you.

Most times immigration does not have time to pick thru application and AOS granted but you never know which case gets held up.

[Nigerienne31 0]

Well I can't think of any proof we would have except maybe affadavits from people who were there when we met after he entered the country. At least we have the truth on our side, he really was NOT intending to stay! In fact, the US is not really where he wants to be. He is looking for work outside of the US, but is having a hard time of it. What happens if we file for the AOS, and then he leaves the country for work and years down the road he wants to come back, would that be a problem? We would just then refile for a spousal visa, right?

I really appreciate the help, there are just so many options on what to do!

[Nigerienne31 0]

Another question: Do I have to file the I-485 at the same time as the I-130? Which means coming up with all the filing fees at once? I was hoping I could spread it out, and just pay the $420 now...

[Harsh_77 718]

Answer to both of your question:

If he leaves before the AOS is complete than he would not be able to enter until process is complete. It does not have an adverse affect on the application.

Lot of the ppl do it that way, they come to US on B1/2 get married, stay here for 6 months then return home and finish the rest of the process in their home country, that way separation time is minimal to 2-3 months.

You can do both together, if you do both together both fees would have to be paid together.

[Nigerienne31 0]

Hmmm... but is it necessary to file the I-485 at the same time as the I-130? I realize it would speed up the process, but really we just want to make it so that he can stay in the country for now. Can we just file the I-130 for that, and then the I-485 once we get a chance to work up the funds?

[Nigerienne31 0]

And we have to file the I-130 before his tourist visa expires, right?

[Harpa Timsah 13,258]

I-130 by itself gives no legal status. If you file that alone, he will be an illegal alien subject to deportation and unable to work. The I-485 gives temporary legal status.

[Nigerienne31 0]

Oh dear, that is not good news, what do poor people do when they want to marry foreigners? I make just the 125% over the poverty line for my family size but we don't have that kind of extra money for the application! Now if my husband could work, that would be another story....

[Little_My 464]

Your husband cannot work until he either receives the temporary EAD card, which gives him permission to work while AOS is pending, or until he has the actual greencard. There's no way around it. Filing the I-130 serves really no purpose at all in a situation where the foreign spouse is already in the US - if you file it without the I-485, it will just prolong the process, and as Harpa said, gives him no legal status in the US. Overstay is forgiven for spouses of US citizens, so my suggestion is for you to either 1) delay the filing a bit and save the money for both I-130 and I-485, or 2) borrow the money from a friend or a family member, and file now.

With the medical fees, copies, passport photos and filing fees, the whole thing usually comes down to about $2,000, give or take a few hundred.

[EM_Vandaveer 2,417]

Maybe you could borrow from family/friends?

Once you start the process, your husband can't leave without an AP (Advance Parole). If he does, he'll abandon the application. You can file for the AP WITH the I-130 & I-485, then it does not have a separate fee. Keep in mind that he'll have to be in the country for his biometrics and also for his interview (these are on separate dates).

[Nigerienne31 0]

Your husband cannot work until he either receives the temporary EAD card, which gives him permission to work while AOS is pending, or until he has the actual greencard. There's no way around it. Filing the I-130 serves really no purpose at all in a situation where the foreign spouse is already in the US - if you file it without the I-485, it will just prolong the process, and as Harpa said, gives him no legal status in the US. Overstay is forgiven for spouses of US citizens, so my suggestion is for you to either 1) delay the filing a bit and save the money for both I-130 and I-485, or 2) borrow the money from a friend or a family member, and file now.

With the medical fees, copies, passport photos and filing fees, the whole thing usually comes down to about $2,000, give or take a few hundred.

When you say overstay is forgiven for spouses, you mean he isn't considered an illegal alien while we get the money together? There isn't a penalty or anything for filing after his tourist visa expires? That is good news.

[Harpa Timsah 13,258]

When you say overstay is forgiven for spouses, you mean he isn't considered an illegal alien while we get the money together? There isn't a penalty or anything for filing after his tourist visa expires? That is good news.

Not exactly. His overstay is not a bar to adjusting status, and once the Greencard is approved, he will be able to travel without incurring a ban. When you first file the AOS he will begin a new period of temporary authorized stay while the application is pending. However, for all the time before that, he is illegal and can be deported.

You met, married, and are pregnant within 3 months?

Edited August 10, 2012 by Harpa Timsah