Pending I-130, getting naturalized soon and spouse is here...

[tristanz 0]

I am currently a permanent resident and if everything goes well I will be naturalized sometime in June.

Spouse came in November and she has until May on her I-94. We filed I-130 sometime in December with Consular processing to get things started in case we decide to stay in USA. On the other hand we have been trying to have a baby for the past year without any success. But last month we discovered that we are finally getting a bigger family!

Of course the situation brings a lot of questions. Naturally we would like to stay together and support each other during this time. So as far as I can see we have the following options.

- Apply for extension on I-94, explain that we are having a baby and we have the financial means to support ourselves. Than get naturalized and than send the I-485 to get it matched with pending I-130. Assuming extension is accepted spouse will never be out of status this way. But then with pending I-130 I am not sure how much of a chance we have with extension.

- Don't complicate things by filing an extension and than an adjustment of status which might look bad in the eyes of the interviewing officer. Get naturalized and than send the I-485 to get it matched with pending I-130. But this means spouse will be overstaying.

What would you guys suggest in our case?

[Carla V 43]

I can be wrong (hope someone correct me if I am) Permanent residents family is not forgiven for overstay... Since you would start her adjustment and I130 petition as a lpr you get into a priority date list and take more than a citizen petition for family members. She have to be lawfully in the US if she is waiting here, if her legal status ends she needs to leave, you could file an extension but I dont know how long it takes to get an answer or how difficult is... but if expire she have to leave to wait in her country until she have her interview for spousal visa and get approve.... I know that when you get your naturalization your petition is updated as a citizen petition for an inmediate relative, making waiting a lot smaller... what I dont know is if that allow the forgiving overstay part as well... or when it kick in.... check all your options because your wife need a smooth and happy pregnancy for her health and your baby's don't make it stressful for her... good luck and congratulations for the sweet baby!!!!!!!!!

[aaron2020 11,651]

Hi.

It's highly unlikely that your wife will get an extension of her visitor visa as a means to give birth and live in the US until you can file for AOS. Having a baby and living in the US is not what a visitor visa is for.

Your wife's choices are to leave when her I-94 expires or overstay.

Sorry, but the spouse of an LPR cannot use a visitor visa to live in the US until the LPR gets US citizenship.

[tristanz 0]

Carla,

We applied for consular processing only and already filed I-130. There is no I485 (AOS) pending now. That is something I will do only after I am naturalized.

Thanks to you both.

[aussie_jason 195]

Doing consular processing on the I130 like that will likely end up causing delays while they shuffle your file around and filing the I-130 first doesn't provide any benefit when filing I-485 anyway.

On what visa did your wife enter? If it was a B2 then you can try applying for an extension online, failing that your only other legal option is for your wife to return to her home country and go the IR1/CR1 route. I'm sure you can ascertain what the not legal way to go is but I can't recommend that.