Proof for B2 visa at POE/Can I still file I-130 and I-485 if I become out of status? Please read!!

[Erica & L 52]

Hey everyone, I am having a bit of a stressful day and I really wanted to get a bunch of opinions on my situation as I've been doing a bunch of research over the past few hours and would like some clarification if possible, so here's my timeline and some information:

June 25th, 2013: POE under a B2 6 months visitors visa.

September 25th, 2013: Married.

December 24th, 2013: I-94 expires.

We are filing the following forms:

I-130

I-485
I-693
G-325A (x3 one for my wife and two for myself)
I-864

I met my wife (USC) online, she come up to Canada to visit me (Canadian citizen) for 3 months before we came back down here to Alabama where she's from. I came in under a visitors visa, because at the time, same-sex couples we not recognized under the US federal law and our only option as a couple was to "snow bird" back and forth from Canada and the US for 6 month periods. This law changed on June 26th, 2013, the day after my POE, however we had no prior notion of this happening as we booked out flights to come to the US to visit a month or so beforehand, and didn't even find about the change in DOMA until a few weeks later after getting settled in from a stressful trip. Thus we decided to get married in Maryland and pursue a green card for myself, as it is better for our situation.

PART 1 OF MY QUESTIONS:

I'm not sure how I can prove that there was no intention to immigrate at my POE, other than what I already have/can think of and I hope it's enough:

- a notarized affidavit from my aunt (knew us as a couple for the time my wife was up there, left a lot of my stuff with her for when we came back up there and was planning to move back into her suite temporarily upon return)

- about 3 weeks before we left Canada we opened an joint RBC US and Canada bank account, so I could pay my bills from down here and so we could use our funds both down here and then back again up there to avoid international debit/credit card fees when we returned.

- print outs of our booked flight records (I believe my wife has the itinerary records/dates in her old emails, if not, we could contact the individual airline or website we booked it through to have it possibly emailed to us again?)

- a detailed letter better explaining the situation, showing that I couldn't have possibly know ahead of time whether a law was or was not going to be passed for sure.

(ps I have sufficient other proof of a bona fide marriage, that's not what I'm concerned about)

This leads me to...

PART 2 OF MY QUESTIONS:

It's been financially draining to come up with the money to send off the I-130 and I-485 package, and we were planning to have it all sent out in the beginning of December (about 3 weeks before my I-94 expires) but after taking a better look into my wife's tax situation, we've hit a snag on form I-864. She filed her taxes for 2009 and 2012, and I've requested transcripts for those. But she did not file for 2010 or 2011, her father just claimed her as a dependent. Until a few days ago it was thought because her income was under the required amount to file, therefore we were just planning to write a letter explaining that, get her current pay stubs, a letter from her GM etc to send as padding proof for that form, BUT, turns out she wasn't under the threshold and was still required to file and now has to back file for those years. I am now extremely concerned with time because now we have to collect all her W2s (providing her work did in fact keep them for the 4 years they're legally suppose to) if not, have to file away a form for that (several weeks). Then she has to file her back taxes online, wait for them to be processed (around 3 weeks), and then for a transcript to become available (I've heard anything from 2-4 weeks, 4-6 weeks, and beyond) on the IRS website to be ordered, which takes 5-10 business days to then be received in the mail. In addition, we think she should would JUST make enough money to show she can support me, but we won't know until all of that is sorted out. Then, we may need her step-dad to co-sign, i.e. more time and paperwork to be done.

I'm afraid to become out "out of status" with all this timing but I've read some good news but also some confusing things about what to do but wanted to confirm with you all:

1. Will I be able to submit the I-130 and I-485 AOS even if I become "out of status"?

2. Is there a specific or limited period of time you're allowed to become "out of status" and still apply for AOS?

3. Would my application get treated any different (slowly, looked over more securely, more chance of receiving an RFE) if I can't send it off before my I-94 expires?

3. Does the AOS waive my "out of status" rank once it's accepted NOT just from filing it?

4. If I'm a spouse of a USC, and don't leave the country before filing the AOS, during the process of the AOS, or UNTIL I get my green card, I do not face deportation?

5. Is filing form I-539 (extension of status) basically useless because it could easily be denied after 6 months of waiting therefore I'd be deported and that would screw up my AOS process?

5. There is no point on filing on form "I-131" because leaving the country, even under that form, could result in ban?

This is what I've read in several forums and it's made me feel a lot better but I wanted to hash it out with all you lovely people and get some concrete feedback to my personal story. I know having an immigration lawyer might be recommended by some of you, and believe me if we had the extra cash I would hire one, but that's not the case right now. Everyone on this website is so helpful and I'd really appreciate your advice or opinions.

Thank you so much!!

Edited October 25, 2013 by justfromerica

[Erica & L 52]

Anyone with any feedback at all?

[Umka36 781]

Which state will you be filing the AOS? If it's the Alabama address, does this state recognize same sex marriage?

[Erica & L 52]

We are filing the AOS from Alabama, yes. The state does not recognize our marriage but the federal law/government does. So we couldn't have been married in Alabama, or put each other as spouses for things, but because green cards are federal and not by state, I can apply.

[Umka36 781]

After further research, you're right:

Q3: My spouse and I were married in a U.S. state or a foreign country that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse? NEW
A3: Yes. As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage. The domicile state’s laws and policies on same-sex marriages will not bear on whether USCIS will recognize a marriage as valid.

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=2543215c310af310VgnVCM100000082ca60aRCRD&vgnextchannel=2543215c310af310VgnVCM100000082ca60aRCRD

The visa overstay should not be a problem, because it's forgiven for immediate relative of a US citizen (don't leave the US until your get the GC though). You are in a situation like any other spouse that overstays their visa, so file the AOS ASAP is my recommendation.

[Nadiab 3]

i've been in the same situation, and let me tell you something, you wont face deportation based on OUT OF STATUS. so dont worry, you can show that you didnt really planed to get married before you arrived, is that your flight was the day before DOMA got overturned. so thats a good thing. i was out of status almost for a year, we got married last year in october and my i94 expired nov 2012, and according to my lawyer it was ok since i got married before my i94 expire.. i didnt pay any fine either (a lot of people told me that i would have to pay since i was here out of status for almost a year, NOT TRUE IF YOU CAME HERE LEGALY)

this is what i sent,

- I-130, Petition for Alien Relative
1. Cover letter stating content of package
2. Check made payable to US Department of Homeland Security for the amount of $420.00
3. Two (2) passport photographs taken in accordance to USCIS requirements (one each of Petitioner and Beneficiary)
4. Form I-130, Petition for Alien Relative
5. Form G-325A, Biographic Information for Petitioner
6. Form G-325A, Biographic Information for Beneficiary
7. Scan of Petitioner’s passport stating evidence of U.S. Citizenship
8. Scan of the Beneficiary’s present and previous passports, non-immigration F1 visas an I-94 card
9. Evidence of bona fied marriage
Scan of Marriage Certificate
Photos of Petitioner and Beneficiary with descriptions
Copies of Boarding Passes from traveling together

Tax return from previous 4 years

Scan of our previous debit cards showing same cards numbers from our joint account

Currently bank statement showing joint account

I 485 package

I-485, Application to Adjust Status
1. Check made payable to US Department of Homeland Security for the amount of $1070.00
2. Cover letter stating content of package
3. Form I-485, Application for Adjustment of Status
4. Scan of the Beneficiary’s present and previous passport, non-immigration F1 visas and I-94 card
5. Scan of Beneficiary’s original Birth Certificate and notarized translation.
7. Scan of marriage certificate
8. Two (2) passport photographs of Beneficiary taken in accordance to USCIS requirements
9. Form G-325A, Biographic Information Sheet for Beneficiary
10. Form I-693, Report of Medical Examination and Vaccination Record in sealed envelope
11. Form I-864, Affidavit of Support including supporting documents

what i think you can do about the taxes issues, is make a copy (certified) of her W2 forms for all the previous years and put it with the transcrips if you are going to get it.

ok, i hope this helps, theres a same sex group too in here, you have to look it up and have answers from somebody that actually knows about this.

good luck

[Nadiab 3]

and the I-131 travel permit, and this too,

I-765, Application for Employment Authorization
1. Form I-765, Application for Employment Authorization
2. Two (2) passport photographs of Beneficiary taken in accordance to USCIS requirements
3. Scan of the Beneficiary’s present and previous passport, non-immigration F1 visas and I-94 card

i filled this, just in case i needed to leave the country before my GC it doesnt cost anything and it can help if you need to leave

[Teddy B 17,252]

If you occur an overstay, it will be forgiven with marriage to a USC. No need to file an I-539 for extension of status. Get your financials together and send in your forms as soon as you can. Do not leave the US until you receive your advance parole.

Also, don't worry about proving your intention when entering the US. It is not up to you to prove your intentions, it is up to USCIS to prove you had intent. Intent alone is not reason for AOS denial.

Good Luck!

Edited October 25, 2013 by Teddy B

[Leo7777 243]

Can you point me to statement, rule, etc., that requires copies of 'previous passports?'

Thanks

[Harpa Timsah 13,258]

You are overthinking this. You didn't have intent to immigrate, so there is no need to prove it with a lot of paperwork. They probably won't even ask because intent to immigrate by itself is not enough reason to deny an AOS case. I would not even bring up the issue.

Regarding taxes, your wife will need to file her back taxes. Being a dependent does not absolve her of the need to file her own taxes. I believe I mentioned this to you before.

She will always be the main sponsor, so she needs to get this in order before she files. If she doesn't qualify with her present income then you will need a co-sponsor too.

For your other questions, overstay is irrelevant/forgiven for spouses who adjust status in-country. So it doesn't matter if you overstay one day or 20 years, for AOS. Any time you are overstaying though, you are subject to deportation, though if you were caught you would probably be ordered to file AOS immediately, and not deported. Once your I-485 is officially pending, then you begin a new period of authorized stay.

For the I-131, if you get 180 days of overstay or more before you file the AOS, then don't use it because leaving the US would trigger a ban. If you have less than that when you file you can still use the I-131 Advance Parole. Once you get your GC any prior overstay issues/bans are erased.

[Erica & L 52]

Thank you all for the information, it's reassuring to hear that I won't be kicked out. I am HOPING to send everything off in time, but this puts a little less stress time-frame wise. I am over thinking this, definitely, but I'd rather be over-prepared then lacking in any category. My brain is so jumbled!!

One question: a few of you said not to worry about proving that we didn't have intent, so should I just not mention anything at all or add any proof other than explaining briefly about how we made plans ahead of time, came down to visit, found out about the change of the law after, and decided it would be best to immigrate? AND THEN if they ask for proof, I can provide it? Otherwise just keep it brief and concise?

Also, this is what I have so far for my package, minus the tax things if anyone wants to comment/take a quick look:

*Overall Cover Page

I-130

*I-130 form

*Cover page with contents listed

*”our story” page

*check filled out and signed for $420

* A copy of USC's birth certificate

* A copy of the Beneficiary’s birth certificate

* A certified copy of the marriage certificate

* A passport-style photo of USC

* A passport-style photo of Beneficiary

* G-325A completed by USC

* G-325A completed by Beneficiary

Proof of Bona Fide Marriage

*Documents showing co-mingling of financial resources

- void check with both USC and Beneficiary’s names on it

- 2013 statements for RBC Canada joint account

- 2013 statements for RBC US joint account

- legal letter from RBC US

- debit cards with USC and Beneficiary’s names on it with partial blur out

- paystubs from USC’s employment

*Documents showing previous tendency/good standing

*Current rental agreement with USC and Beneficiary’s names on it

*Flight records of USC coming to Canada for visit

*Proof of marriage trip (hotel booking, gas and food costs)

*Affidavits

- Aunt (before we were married, just dating, while in Canada with intention to come back, knowledge of the marriage and the visit that lead to it unexpectedly, have some of my items with them in storage for when I was planning to come back)

- Wanda (mother of wife, living close to us since been married, knew us while we were dating in the US, engaged, then married)

- Adria (was witnessed to our wedding in Maryland, knew us before we were married and then after)

*Documents of the cellphone plan we share (family plan)

*Pictures from

- Vancouver

- Alabama

- Wedding

I-485

*I-485 form

*Cover page with contents listed

*”our story” page

*check filled out and signed for $1,070

*Copy of beneficiary’s passport biometric info

*Copy of beneficiary’s I-94 (front and back)

- Downloaded version of beneficiary’s I-94

*A copy of the Beneficiary’s birth certificate

*A certified copy of the marriage certificate

*2 passport-type photos for Beneficiary

*G-325A completed by Beneficiary

I-693, Medical Examination of Aliens Seeking Adjustment of Status

*Sealed envelope of form 1-693 from Civil Surgeon containing medical information

I-864, Affidavit of Support

*I-864 form

*Tax transcripts (add W-2s if applicable)

- 2009 (irrelevant but still)

- 2010 pending

- 2011 pending

- 2012

*Documents to show sufficient/stable work from USC’s general manager

*Copies of USC’s employment paystubs

I-765, Application for Employment Authorization

*I-765 form

*Category Beneficiary fits into – pending (site won’t load doc)

*Copy of beneficiary’s passport biometric info

*2 passport-type photos for Beneficiary

[Erica & L 52]

Can you point me to statement, rule, etc., that requires copies of 'previous passports?'

Thanks

I am also curious about this. I've only ever had one Canadian passport before my current one, and it got sent away as ID to get my current one.

[GVMack 9]

Ok So how many passport photos all together for beneficiary and how many for the sponsor?

We're doing AOS as well.

I did not see that we have to include passport photos for work auth. Only for the I-485 and I-130?

Sorry I'm confused...

Any help would be appreciated

[Harpa Timsah 13,258]

7 photos for immigrant, 1 for USC. It;s all in the instructions. If you didn't see it, read it again because there is probably something else you missed.

OP: I would not mention "intent" at all. You are AOSing based on your current presence in the US, your legal entry, and your marriage to a USC. That's all. No need to mention anything else.

And your code for EAD is C9.

Edited October 26, 2013 by Harpa Timsah

[Erica & L 52]

Ok So how many passport photos all together for beneficiary and how many for the sponsor?

We're doing AOS as well.

I did not see that we have to include passport photos for work auth. Only for the I-485 and I-130?

Sorry I'm confused...

Any help would be appreciated

I think I only have 5 for Beneficiary and 1 for USC because I'm not doing form I-131. Anyone can correct me if I'm wrong?