Can I adjust status from B2 visitor visa to perm resident?

[masha3250 0]

Hi all! I hope someone can help me! I am wondering if my husband, who is currently on a B2 visa and is in the USA as a visitor, should apply for permanent residency through adjustment of status or through consular processing.

The background:

I am a US citizen. I moved to the UK on a student visa in 2009, met my now-husband, and got a post-study work visa to stay in the UK once my student visa expired. My husband and I started a business together in London in 2012 and we always intended to live in the UK.

We got married in June 2012 and afterwards went to the USA for a second reception. Unfortunately, while we were away, the UK decided to crack down on immigration and changed their laws for marriage visas. The rules were especially harsh on self-employed people. I became ineligible to apply for the marriage visa because our new business had not yet made the required minimum income, and as self-employed people, we were not allowed to count our savings towards the target (like everyone else). Also, the new rules stated that self-employed people can only apply for the marriage visa once a year, at the end of the company's financial year (which is July 1st for us).

This obviously caused a lot of upheaval for us. I continued working with my husband through the end of 2012, when my post-study work visa expired. I left the UK and then re-entered as a tourist. We stayed for the first 4 months of 2013, then went to the USA to visit my family for 2 months, then returned to the UK for another 2 months. Unfortunately, due to a calculating error by our accountant, we believed at the end of our financial year in July 2013 that we had not made enough money to apply for the visa (we actually had! - kicking myself!!).

At that point, I had used up my tourist visa allowance for that year for the UK, so we went to Morocco for 2 months and my husband applied for the B2 visa for the USA. Our plan was to come to the USA in October 2013, do Christmas, visit people, go back the UK for about 3-4 months at the start of 2014, then come back to the USA to apply for the UK marriage visa (which we have to apply for from my home country).

Almost immediately after arrival, I by chance wound up getting a job tutoring disabled kids, and I ended up committing myself through the end of the school year in summer 2014. My husband continued to run his UK online business from the USA, and things were going really well and we were finally on track to make the money for the UK marriage visa! At the beginning of February, we applied for an extension to his B2 visa (I-539) so that he could stay through the summer with me. This was approved and he has been issued a new I-94 to depart the USA in August 2014.

In March, disaster struck! A lot of the business deals that had been confirmed in January fell through all at once - almost $30,000 worth. Though he has a lot more in the pipeline, it is unlikely that deals will close and payment will be received and paid out in salary by the end of our company's financial year (our clients tend to take several months to pay). This means that as of now, the middle of April 2014, we are fairly certain that we once again will not be eligible to apply for the UK marriage visa and will have to wait another year.

We have really enjoyed the past 6 months here and it's been great being somewhere that it doesn't rain every day - I'd almost forgotten what that was like!

We are now considering applying for the US Marriage visa instead, because we are eligible and I now think we could happily live here for the immediate future.

My question is: what is the best way to do this?

I am confused about consular filing vs applying for adjustment of status.

My husband is legally in the USA on a B2 visa and his I-94 expires on August 16, 2014.

When he entered on the B2 visa, AND when he applied for the I-94 extension, we had no intent to stay in the USA or apply for his permanent residence.

Should we apply for adjustment of status? Or should we apply through consular processing?

If consular processing, will that take less time? Are we even eligible for that since he is currently in the USA? Would we have to wait until we go back to the UK in August to apply for it?

If we apply for the adjustment of status, is it likely to get approved, or would our case look too suspicious? How long does this tend to take? Would he be able to leave the USA and re-enter while his application is processing?

Thanks - sorry for the long post but I wanted to give all the details!

[Hypnos 6,578]

Your case sounds like a textbook example of circumstances changing significantly after entry. Based on what you've stated, I would think that filing for AoS would be reasonably straightforward, provided your income is sufficient to sponsor your husband.

Follow the guide if you do wish to pursue this option: http://www.visajourney.com/forums/index.php?autocom=custom&page=i130guide2

Your husband would probably receive his green card within 3 - 4 months of application; this would be faster than filing for an immigrant visa through consular processing.

After filing, your husband would be unable to leave the US for approximately 90 days until he received his Advance Parole (you would apply for this concurrently with the AoS, together with employment authorization).

Edited April 16, 2014 by Hypnos