Adjustment of Status on F2A with a Current Priority Date

[bokar83 13]

Hi Everyone,

Here are some clarifications:

1. NCIS means I've been watching too much TV. I really meant USCIS. Please excuse me , honest mistake.

2. AS far as I know, you are able to adjust status with any visa (even a tourist visa) if you are already in the states. The thing is, since the last bulletin has been published, if you try to ENTER the US right now with the intent to change your status then that would be visa fraud. In My case for example I have already been in the states since 3 months ago and there was no way for me to know my PD would become current at that time and of course I can prove this with my passport stamps.

As for the other question, I really can't answer it right now, but I will be meeting with my lawyer today. I'll try to post all the info I get so we can have some direction.

Hang on, everyone!

NCIS is a great show, so no harm.

[tataocb 2]

Hi Everyone,

Here are some clarifications:

1. NCIS means I've been watching too much TV. I really meant USCIS. Please excuse me , honest mistake.

2. AS far as I know, you are able to adjust status with any visa (even a tourist visa) if you are already in the states. The thing is, since the last bulletin has been published, if you try to ENTER the US right now with the intent to change your status then that would be visa fraud. In My case for example I have already been in the states since 3 months ago and there was no way for me to know my PD would become current at that time and of course I can prove this with my passport stamps.

As for the other question, I really can't answer it right now, but I will be meeting with my lawyer today. I'll try to post all the info I get so we can have some direction.

Hang on, everyone!

What you mention about the visitor visa makes sense.

I also agree, NCIS is a good show!

I hope everything goes well if you decide to file for AOS in August. Please let us know what your experience is if you do. There's been so much talk on the subject that I hope that someone who decides to file for AOS tells his experience here.

[newacct 688]

1. Is there a specific type of visa you have to be using while in the US to file for adjustment of status? Like say a work visa, or student visa. I ask this because I remember reading that an adjustment of status cannot be filed while in the US with a visitor visa because it is illegal to use a visitor visa with an intent to immigrate. Would that be grounds for a refusal?

You are confusing two different things. There is no specific type of visa you have to be in to file for adjustment of status. Any legal status will do, including tourist visa. It is also true that it is visa fraud to enter using a tourist visa with the intent to immigrate. But just because you file to adjust status later does not mean you had intent to do it when you entered. So filing for adjustment of status while on tourist visa does not mean you committed visa fraud when you entered.

Even if you had intent when you entered, whether that would be grounds for denial, there are differing opinions on this. Some people on this forum think no.

2. What happens if you file for an adjustment of status, and by the time you go to your interview, the F2A category is no longer current and has retrogressed to before your PD. Since that means that a visa is not available for you at the time, would they refuse your petition for an adjustment of status?

If your I-485 is properly filed, then it will stay pending until the visa number becomes available again. In the meantime you can stay in the U.S. and can get EAD/AP to work and travel.

[sam271985 7]

Just wanted to let you all know I just called the NCIS and talked to great representative (which is a major lucky break). They just told me they moved the case to process it faster since there is a huge amount of workload. They guy also gave us good news.

1. Now that the the F2A category is current, you are able to apply for adjustment of status if you are legally in the US (Which is my case)

2. Along with the I-485 (adjustment of status) you are able to apply for I-765 (Application for employment authorization) so you can work until the process is done.

3. Along with everything else, you are able to apply for I-131 (Application for travel document) which grants you permission to travel to your home country with a pending process of adjustment of status.

So it's great news for us !!!!

Did u call USCIS, and they tell u that u can file I-485 with pending I-130?

[SavingCavemen 1]

Hello everyone!

Well, here at last is the answer we've all been looking for. I met with my lawyer and here's how the AOS works:

• 1. Yes, if you are currently in the US with a LEGAL status and have a current priority date, you are eligible for AOS...EVEN ON A TOURIST VISA. You would not be eligible if you entered with a transit visa or under the visa waiver program. (Please check the website for all eligibility criteria).
• 2. You are eligible for AOS even if you HAVE NOT received an NOA2.
• 3. If on a tourist visa, You will be required to prove that you entered the country without the intent to immigrate. This can be proven if you entered a reasonable time before the August bulletin was published (around July 9th). Nonetheless my attorney has chosen to take the safe route and file the AOS until 90 days have passed from my entry to the US. We will also be filling documentation that proves that I had the intention of returning to my country and to my job and that it was only because this unpredictable change in the priority dates that I will be filing for AOS.
• 4. If you have filed for AOS, you will receive travel and work permits in about 90 days after filing. These will allow you to work and live in the US and also, you will be able to travel back and forth to your home country without restrictions.
• 5. Should there be a retrogression in the priority dates after you filed for AOS, you are already covered, as you will still be able to live and work in the United States until a green card is available again (which means until they reach your priority date again).
• 6. You will not be able to leave the US until you receive your travel and work documents (which takes about 90 days after you file).

I hope this sheds some light on the mystery. We will be filing in a couple of weeks, so I will let you know how it goes.

Cheers!

Edited July 29, 2013 by Xtophermerchant

[f2a485 9]

Thanks for your thorough response from your lawyer. It is not different from what other lawyers have said. The only people that think otherwise are some uninformed folks on visa journey who think they know all about US immigration laws even more than lawyers who do this for a living.

[newacct 688]

1. Yes, if you are currently in the US with a LEGAL status and have a current priority date, you are eligible for AOS...EVEN ON A TOURIST VISA. You would not be eligible if you entered with a transit visa or under the visa waiver program. (Please check the website for all eligibility criteria).

There is no difference between visa waiver and other tourist visas in terms of ability to file for AOS.

3. If on a tourist visa, You will be required to prove that you entered the country without the intent to immigrate. This can be proven if you entered a reasonable time before the August bulletin was published (around July 9th). Nonetheless my attorney has chosen to take the safe route and file the AOS until 90 days have passed from my entry to the US. We will also be filling documentation that proves that I had the intention of returning to my country and to my job and that it was only because this unpredictable change in the priority dates that I will be filing for AOS.

This "90-day rule" thing is a fallacy.

[SavingCavemen 1]

There is no difference between visa waiver and other tourist visas in terms of ability to file for AOS.

This "90-day rule" thing is a fallacy.

Either you are trolling or you have no idea of what you are talking about.

(b) Restricted aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act, unless the alien establishes eligibility under the provisions of section 245(i) of the Act and §1245.10 , is not included in the categories of aliens prohibited from applying for adjustment of status listed in§1245.1© , is eligible to receive an immigrant visa, and has an immigrant visa immediately available at the time of filing the application for adjustment of status:

(7) Any alien admitted as a visitor under the visa waiver provisions of 8 CFR 212.1(e) or (q) , other than an immediate relative as defined in section 201(b) of the Act; (Revised effective 11/28/09; 74 FR 55725 )

(8) Any alien admitted as a Visa Waiver Pilot Program visitor under the provisions of section 217 of the Act and part 217 of 8 CFR chapter I other than an immediate relative as defined in section 201(b) of the Act;

Source: http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-38239/0-0-0-38252.html

And about the 90 days...when did I ever say it was a rule? Didn't I just specify MY lawyer was gonna take the safe route? Feel free to file whenever you want or consult WITH YOUR OWN LAWYER.

[aaron2020 11,651]

Xtophermerchant - thanks for the excellent post with references.

VWP users do not qualify to adjust unless they are the Immediare Relatives of a USC. Since F2a are not IR, they do not qualify to adjust.

Great post.

[aktunde 0]

@Xtophermerchant

VWP users do not qualify to adjust unless they are the Immediare Relatives of a USC. Since F2a are not IR, they do not qualify to adjust.

Stop giving wrong information. I am not talking by what the immigration lawyers are saying. Neither I'm I talking from the opinions of others online. I am talking from my personal case experience. My wife is a LPR, and our I-130 is still pending. I mailed my I-485 application on July 30th, with the calculation that it will be received on August 1, 2013. It was actually received on that date. Now as I type this, I already have my bio-metric appointment at a USCIS ASC. This means my application was accepted and being processed. And Yes, my -130 is still pending.

My advise for everyone. If you have a pending 1-130, please and please do not wait. Do not follow wrong advises. This is a unique opportunity which many immigration lawyers have never witnessed before. Therefore, some of them may be right or wrong with their advices. Go and send your application immediately. The earlier the better. I have the feeling that there may be some sort retrogression again once all the available visa numbers are taken. Claim yours ASAP.

[Futurebright 1]

So happy for everyone that has become current. I also adjusted status (without a lawyer) from my tourist visa in January 2013 and received my greencard in April 2013, so yes F2A category spouses please go ahead and claim yours ASAP, once you can afford the adjustment fee

[aaron2020 11,651]

@Xtophermerchant

Stop giving wrong information. I am not talking by what the immigration lawyers are saying. Neither I'm I talking from the opinions of others online. I am talking from my personal case experience. My wife is a LPR, and our I-130 is still pending. I mailed my I-485 application on July 30th, with the calculation that it will be received on August 1, 2013. It was actually received on that date. Now as I type this, I already have my bio-metric appointment at a USCIS ASC. This means my application was accepted and being processed. And Yes, my -130 is still pending.

My advise for everyone. If you have a pending 1-130, please and please do not wait. Do not follow wrong advises. This is a unique opportunity which many immigration lawyers have never witnessed before. Therefore, some of them may be right or wrong with their advices. Go and send your application immediately. The earlier the better. I have the feeling that there may be some sort retrogression again once all the available visa numbers are taken. Claim yours ASAP.

Did you enter on the VWP and file to adjust while married to an LPR?

Xtophermerchant is not wrong and is not giving out the wrong information. Read the law. It's clear.

[aktunde 0]

I did not come on the VWP. I came on F-1 Visa. I will insist again. If your status is still valid, and you are married to a LPR with a pending I-130, and you are not among those that are ineligible as stated on the i-485 instruction, I will encourage you to turn in your application now. At this time (with the current F2A) a valid H1-B or F-1 holder with a pending I-130 need not wait till his/her spouse become a US Citizen. You also do not need to wait till the I-130 is approved. This is from my own experience.

@Xtophermerchant: I am sorry if you are right about those that came on the VWP. I do not fall into that category, and I do not have any information about their eligibility.

Edited August 29, 2013 by aktunde

[aaron2020 11,651]

I did not come on the VWP. I came on F-1 Visa. I will insist again. If your status is still valid, and you are married to a LPR with a pending I-130, and you are not among those that are ineligible as stated on the i-485 instruction, I will encourage you to turn in your application now. At this time (with the current F2A) a valid H1-B or F-1 holder with a pending I-130 need not wait till his/her spouse become a US Citizen. You also do not need to wait till the I-130 is approved. This is from my own experience.

@Xtophermerchant: I am sorry if you are right about those that came on the VWP. I do not fall into that category, and I do not have any information about their eligibility.

Xtophermerchant is right. You are wrong.

F2a beneficiaries with non-immigrant visas can adjust. That includes your F-1 non-immigrant visa.

F2a beneficiaries here on the VWP cannot adjust. That's the law that Xtophermerchant pointed out.

You are not fully understanding the law.

You are also joining this thread after we have already determined it is okay to file concurrently to adjust in the F2a category. Perhaps you missed the other threads where this is being discussed.

It's well known at this time about concurrently filing and adjusting for F2a beneficiaries when the category is current. You are responding to an old thread. Look at the new discussions on this.

Edited August 29, 2013 by aaron2020

[liborutgers12 0]

My i-130 was just approved! Yay. I was going to send it in either way, but now I can update my i-485.

Hi,

I saw your application process. Firstly, congratulations!

Could I ask you one thing? Does your AOS package contain I-864, Affidavit of Support?

Thanks!