Pettition approved but not eligible for adjustment - PART II

[MisterEko 1]

Hey guys,

If you remember my post from few weeks ago (http://www.visajourney.com/forums/topic/452855-petition-approved-but-not-eligible-for-adjustment-of-status/#entry6494084), I received an approval letter from USCIS, but they said I wasn't eligible for adjustment of status, and that they were forwarding my case to NVC, which will handle our case in my country's consulate.

Today, my wife had an InfoPass in our city. Officer there was confused how this happened but said that it must've been a mistake, and to go ahead and file the rest of the paperwork (we only filed I-130 so far since wife is only a PR). So we were happy since our number is current.

However, I just got an email from NVC, saying the following: http://i.imgur.com/gs4oqlB.png

Basically, they're starting our case. We called them and said that I am legally in status and IN the US, so we want everything processed here and not in consulate back home. They said that it wasn't their issue, but USCIS's.

Do you think we should still go ahead and file I-485 with USCIS and disregard NVC? Or keep trying to get to someone in either USCIS and NVC with definite answer?

[MisterEko 1]

Just talked to two more USCIS officers, who said that I CAN NOT adjust from within the US because my wife is a PR (and the other one said it's because I'm in F-1), and adjustment can't be done from the US but my consulate. Does this make sense?

Edited September 20, 2013 by MisterEko

[Harpa Timsah 13,258]

MisterEko,

I am surprised you are back here and have not filed yet because I thought we solved our case.

To answer your first question, NVC doesn't know where you are or what you are doing. They are just like a horse with blinders on, doing the next thing. So ignore them and do not do any NVC processing.

The only way to get out of that is to file a I-485. THe I-130 will be moved from NVC to a USCIS office and matched with your I-485.

Second, the first people you call at USCIS are not USCIS workers and do not know what they are talking about. We call them the "misinformation" line. So the tripe about being a spouse of a LPR isn't true.

As you know F2A category is current NOW and this hasn't been the case in many years. This is unusual and you can take advantage of it now, if you apply now, and not sit on your hands.

File I-485 and include a copy of the NOA2 from the I-130. This is what we said in the previous thread.

[James N 6]

I haven't been doing this as long as many of you, but I have been reading a lot (thanks to NOLO's Fiance and Marriage Visas book). I've found the information that I have to be very accurate, albeit some things do change based on regulations, etc. For the most part, here is what is stated:

• As a spouse of a PR you are not immediately eligible to obtain perm. residence. You are referred to as a preference relative, and there are quotas on the number of preference relatives that are allowed green cards each year. Basically, expect a long wait.
• If you are in the country legally, then remain in the country legally while you wait (do not let your authorization expire). Current waiting period estimates are 3-5 years. Key note here is you must not work at any time illegally during the waiting period.

If your spouse becomes a US Citizen, then this will reduce the waiting time, and there are no quotas. You should file now, and when your spouse becomes a citizen you move off the waiting list and can apply for a green card immediately.

Source:

Fiance and Marriage Visas: A Couple's Guide to US Immigration

http://www.amazon.com/dp/1413317375/ref=tsm_1_fb_lk

[Harpa Timsah 13,258]

I haven't been doing this as long as many of you, but I have been reading a lot (thanks to NOLO's Fiance and Marriage Visas book). I've found the information that I have to be very accurate, albeit some things do change based on regulations, etc. For the most part, here is what is stated:

• As a spouse of a PR you are not immediately eligible to obtain perm. residence. You are referred to as a preference relative, and there are quotas on the number of preference relatives that are allowed green cards each year. Basically, expect a long wait.
• If you are in the country legally, then remain in the country legally while you wait (do not let your authorization expire). Current waiting period estimates are 3-5 years. Key note here is you must not work at any time illegally during the waiting period.

If your spouse becomes a US Citizen, then this will reduce the waiting time, and there are no quotas. You should file now, and when your spouse becomes a citizen you move off the waiting list and can apply for a green card immediately.

Source:

Fiance and Marriage Visas: A Couple's Guide to US Immigration

http://www.amazon.com/dp/1413317375/ref=tsm_1_fb_lk

yes James, that is correct. Sort of.

The F2A category is "current" right now, so it means that visa numbers are available immediately for spouses of LPRs. For a short time, spouses of LPRs can do concurrent filings.

Just a few months ago the wait was 2 years or so, and now it is zero.

The clock is ticking for the OP, though, and every day he waits and asks around for something that was already solved, he risks putting himself in a situation where F2A isn't current anymore. Next month it is already not current.

[MisterEko 1]

yes James, that is correct. Sort of.

The F2A category is "current" right now, so it means that visa numbers are available immediately for spouses of LPRs. For a short time, spouses of LPRs can do concurrent filings.

Just a few months ago the wait was 2 years or so, and now it is zero.

The clock is ticking for the OP, though, and every day he waits and asks around for something that was already solved, he risks putting himself in a situation where F2A isn't current anymore. Next month it is already not current.

Look, I understand what you're telling me, but USCIS officer specifically told me that I cannot file from within the US. And NVC contacted me with process start. Am I really supposed to ignore all that? Will find a lawyer in the morning.

[EM_Vandaveer 2,417]

You are supposed to ignore it because they are wrong. You have to file now, so it is accepted in SEPTEMBER. If you delay, you will not be able to file. The visa bulletin is NOT CURRENT for October for you! It is current for September. Please don't delay....

[Darnell 8,479]

What news of filing? Tick-Tock, Tick-Tock, Tempus Fugit, and all that, then BAM ! F2As not current in October.

What's up ?

We've notice of at least 4 other members taking advantage of the anomoly, for F2A being current in August and September. That's ZERO wait time, fwiw. IT IS AN ANOMOLY, and it's your choice to take advantage of it, nowish.

Tick-Tock, Tick-Tock. Miss the window, and you must choose another path.

Which, of course, will suck.

FWIW, most USCIS folk are not trained about F2A categories, and as such, know nothing about how priority dates work and no, they not really read the monthly visa bulletin, either.

Edited September 22, 2013 by Darnell

[Harpa Timsah 13,258]

Look, I understand what you're telling me, but USCIS officer specifically told me that I cannot file from within the US. And NVC contacted me with process start. Am I really supposed to ignore all that? Will find a lawyer in the morning.

The people you should listen to, the INFOPASS people, told you to go ahead. They said YES. They are real USCIS employees, real adjudicators who handle cases.

Then you called on the phone for a different answer and got the misinformation line. They are call center employees who do not really work for USCIS. They are clueless.

It is all very clear if you read the I-485 instructions. Many people on this site are doing this very thing, right now.

You can also read about it on USCIS.gov.

If you have a visa number immediately available to you, and you are in the US legally and did not overstay, then a spouse of a LPR can file I-485. The end.

[Darnell 8,479]

Today, my wife had an InfoPass in our city. Officer there was confused how this happened but said that it must've been a mistake, and to go ahead and file the rest of the paperwork (we only filed I-130 so far since wife is only a PR). So we were happy since our number is current.

Hey - that's excellent news ! An Immigration Officer actually re-enforced what VJ members have been telling you.

You should run with that.

OTOH - I must subtract 11,000 points from you, for subsequently talking with SERCO contractors at the USCIS National Call Center - they are poorly trained and make sh|t up all the time, just to get you off the phone. Bad Form, for you to rely on SERCO CONTRACTORS for your future life in the USA.

Still, all is a choice.

What will you choose to do for Monday? Can share ?

[MisterEko 1]

You are supposed to ignore it because they are wrong. You have to file now, so it is accepted in SEPTEMBER. If you delay, you will not be able to file. The visa bulletin is NOT CURRENT for October for you! It is current for September. Please don't delay....

Can you explain this to me, though? I filed I-130, and we got approved. Our visa number is available. How does this make difference what current wait time is when my visa is available? Am I not good?

[MisterEko 1]

The people you should listen to, the INFOPASS people, told you to go ahead. They said YES. They are real USCIS employees, real adjudicators who handle cases.

Then you called on the phone for a different answer and got the misinformation line. They are call center employees who do not really work for USCIS. They are clueless.

It is all very clear if you read the I-485 instructions. Many people on this site are doing this very thing, right now.

You can also read about it on USCIS.gov.

If you have a visa number immediately available to you, and you are in the US legally and did not overstay, then a spouse of a LPR can file I-485. The end.

Ok thanks, I am a medical exam away from filing.

One more question: So, out I-130 is approved, and we have a visa number available to us. Are we affected by current visa bulletin processing times? We will send I-485 most likely on October 1st, does it matter what bulletin says since we're approved already?

That's the confusing part to me. Thanks.

[Harpa Timsah 13,258]

Next month, or the next, your visa number will NOT be available. It can retrogress, go backward. Having an approved I-130 is only a part of the puzzle, for you. Do you now what the visa bulletin is and how to read it?

Edit: YES, it absolutely matters what the visa bulletin says. Approval is not the only thing you need. You need a visa number to be immediately available to you. You have that now, with the visa bulletin current. This month. This is the "special formula" that allows you to AOS.

When the visa bulletin showed dates from 2 years ago, the people that had filed then got approved in six months or whatever, but then they still had to wait and wait for a visa number to be available. Approval is a totally other thing. It establishes a family relationship between two people for immigration. It is not a green light to go ahead.

People who wait for 10 years for a brother/sister visa also get approved in 6 months or so. It doesn't mean they can get a visa once they are approved.

The visa number available to you now, for being current, can get taken away from you.

Edited September 23, 2013 by Harpa Timsah

[MisterEko 1]

Next month, or the next, your visa number will NOT be available. It can retrogress, go backward. Having an approved I-130 is only a part of the puzzle, for you. Do you now what the visa bulletin is and how to read it?

Edit: YES, it absolutely matters what the visa bulletin says. Approval is not the only thing you need. You need a visa number to be immediately available to you. You have that now, with the visa bulletin current. This month. This is the "special formula" that allows you to AOS.

I swear, I consider myself decently intelligent human, but this is all a bit confusing.

So say I manage to file before September ends. Will my number be current?

And if I end up filing in October, how does that affect it?

I was under the impression (as told by USCIS officer) that my visa number will be available for next two years since I-130 is approved, which is why I wasn't running all over the place trying to file ASAP.

[Harpa Timsah 13,258]

No no, a visa number will not be available for two years.

Availability goes according to the visa bulletin. ONLY. Approval unrelated.