AOS Denied for Filing Late (K3 Visa)

[Chicago Style 0]

Greetings.

My wife is from Honduras, I am a US-born citizen.

Here is our timeline:

• Married in Honduras on May 3, 2008

• Filed the I-130 on May 19, 2008

• I-130 approved on February 3, 2009

• My wife and I had a daughter born in the US on June 28, 2010.

• Wife entered US on a K-3 visa on April 13, 2011

• We had until February 3, 2010 (one year) to file the AOS (I was unaware of this requirement. My fault.)

• We didn't file the AOS until April 11, 2012 (more than 32 months from the dates of notification that the visa was available)

• We had an AOS interview on July 16, 2012, which was the exact same day that the National Visa Center advised USCIS that my wife's case had been terminated and destroyed.

• The USCIS is saying that without an underlying petition (I-130) to support the AOS (I-485) that we interviewed for, then there an immigrant visa is no longer available to my wife.

• This decision left my wife without legal status as of September 13, 2012 and USCIS is saying that she must leave the country, although no formal order has been submitted.

• I understand that I cannot appeal this decision, but I have until October 13, 2012 to file a motion to re-open/reconsider (I-290B) or re-file the I-130 and I-485.

• My wife is home every day raising our 2-yo daughter and I travel a lot with my job. Obviously, her leaving voluntarily or involuntarily would place a significant burden on our family.

Questions:

• Should I re-file the I-130 and I-485 or file a motion to re-open/reconsider?

• If I re-file the I-130 and I-485 and my wife refuses to leave voluntarily, will that impact the decision? So, does she have to be in Honduras for the K-3 visa interview?

• If we file a motion to re-open and it’s denied, is the only option we have left is to re-file the I-130 and I-485?

• At this point, is there any way to avoid her having to leave the country?

• I already spoke to a lawyer and she recommended that we submit both the I-751 (Petition to Remove Conditions on Residence) and re-file the I-130 and I-485 -- all for a tidy sum of $5,500. I don’t understand how we can file the I-751 if her I-130 is dead. Is this an option?

• Is there any way that I can go begging to some court to grant her an immediate AOS?

• What is the best decision to make under these circumstances?

[jaycali 415]

I would start from scratch with adjustment of status. File the I-130/I-485 package as if it was the first time you filed. DO NOT HAVE HER LEAVE THE COUNTRY under ANY circumstance - She is out of status, and will likely trigger a 3 or 10 year bar from re-entry if she leaves. In which case no visa or petition will help.

While she's not currently in the US legally, this will not matter when adjusting status.

Your problem is that the underlying I-130 petition is no longer valid - This is the basis for any visa or adjustment of status. Without a valid I-130 petition, there is nothing to base neither a visa, nor an adjustment on. It would be like building a house in thin air - the I-130 is the ground that you build it on.

Edited September 28, 2012 by jaejayC

[belinda63 3,039]

Your best route would be to file the I-130/I-485 as any overstay she has accumulated will be forgive on approval. There is no need to waste your money appealing or re-opening the case as you have no grounds. Maybe someone more knowledgeable will come along but I don't know what the I-751 has to do with your case, you have been married more than two years so she will obtain the 10 year green card with no need to remove conditions.

I suggest you file as soon as possible and have your wife lay low as if she is place into deportation proceedings, while she will likely not be deported, it will be a lot more time and trouble for you.

Remember because of her overstay she cannot leave the country for any reason until she has her green card in her hand. Do not bother filing for advance parole as she will not be permitted back into the country with it.

[Chicago Style 0]

Thanks for the super quick response! You two are awwsome!!

One more question. Is the other option to not refile the I-130, wait for a deportation order, then file a petition ro review a removal order or a stay motion with the court of appeals? I hear going this route might be risky, but if granted the stay, the courts have the right to order the USCIS to approve her AOS on the spot and issue a green card after the determination. Is this true?

[jaycali 415]

Thanks for the super quick response! You two are awwsome!!

One more question. Is the other option to not refile the I-130, wait for a deportation order, then file a petition ro review a removal order or a stay motion with the court of appeals? I hear going this route might be risky, but if granted the stay, the courts have the right to order the USCIS to approve her AOS on the spot and issue a green card after the determination. Is this true?

Not sure actually, but that sounds like a whole lot of risk, blood, sweat and tears. A deportation order most likely won't come until she's already adjusted anyway.

File the I-130 today, and concurrently file the I-485 (adjustment of status). You can file I-751 (for employment authorization) along with the package as well. The employment authorization is usually granted before the adjustment of status is complete anyway. I would say this is the safest, quickest, most painfree and definitely most legal route.

Again, under no circumstance should she leave the country. If she has been out of status for more than one year she will be barred from re-entry on any visa for the next 10 years.

[Chicago Style 0]

Thanks jaejayC!

I think I am going to take your advice and refile everything.

One more question: All of her immigration applications had her maiden name. We never got it changed to my last name after we got married in Honduras because we would then need to get her passport changed, which takes forever in Honduras. However, during the AOS interview the officer asked us if my wife wanted to change her last name to my last name and we said yes. I noticed that on the AOS denial letter, her maiden name was no longer and she had my name. BTW, her Honduran passport and her now invalid work authorization card both have her maiden name.

When I refile everything, should I use her maiden name or my last name?

[jaycali 415]

Thanks jaejayC!I think I am going to take your advice and refile everything.One more question: All of her immigration applications had her maiden name. We never got it changed to my last name after we got married in Honduras because we would then need to get her passport changed, which takes forever in Honduras. However, during the AOS interview the officer asked us if my wife wanted to change her last name to my last name and we said yes. I noticed that on the AOS denial letter, her maiden name was no longer and she had my name. BTW, her Honduran passport and her now invalid work authorization card both have her maiden name. When I refile everything, should I use her maiden name or my last name?

What is her legal name as of today? Use that. Do you have any documents showing her name change? If she legally has your last name now, use that, the I-130 petition asks for other names used as well.

Edited September 28, 2012 by jaejayC

[Chicago Style 0]

Well, according to the USCIS she now has my last name - as the result of the AOS interview.

Her "legal" name (according to her Honduran passport) is her maiden name.

So, if we are re-filing as if for the first time then I should probably use her maiden name. Especially since she has no legal status in the US. I think I got it. Thanks so much!!!

[Chicago Style 0]

Thanks again to everyone who responded with help. I took the route of filing a new I-130/I-485/I-751.

Last week, we got a appointment notice for biometrics (fingerprints). My wife if fearful of taking the appointment because she thinks that ICE will be waiting for her at the appointment. I told her not to worry. Should she be worried?

[Harpa Timsah 13,258]

I hope you filed I-765 and not I-751 because I-765 is an EAD and I-751 is to remove conditions on residency (which she does not yet have).

[Chicago Style 0]

We decided to refile both the I-130 and the I-485. I paid all of the fees again and within a few months, my wife had her green card.

Note: During the first AOS interview, the USCIS agent asked us if we wanted my wife to take my last name. During the second interview, this option was not available and when I asked the new USCIS agent, she said that she would check but that it wasn't likely. When the green card arrived, it has her maiden name on it, just the way it was on the petition and on her Honduran passport. We decided to not fight the flip-flop.

Thanks to everyone who assisted with my inquiry. God Bless!

I hope you filed I-765 and not I-751 because I-765 is an EAD and I-751 is to remove conditions on residency (which she does not yet have).

Yes. You are correct. It was the I-765.

Edited February 5, 2013 by Chicago Style

[TBoneTX 45,591]

*** Thread moved from K-3 case progress subforum to AOS/Family-Based case progress subforum -- topic concerns the AOS stage. ***

[Penguin_ie 5,995]

Thanks for the update!