Anyone who recently applied for F2A- AOS from a tourist visa?

[travistrle 0]

Some confusion here.

First, USCIS cannot and will not give you legal advice. You should consult with an experienced immigration attorney to do that.

Second, it is the case that a visa number is always available for immediate relatives of a US citizen (spouse, minor child, parent of a child over 21, or widow/er). For those under the Family Preference categories (F1/F2A/F2B/F3/F4) then it was the case that in order to file an I-485 you must have had an already-approved I-130 for which the priority date was current, and you must have always been in status.

October is the first month of the new system whereby your previously-filed I-130 does not necessarily have to have been approved in order for you to file the I-485. Using the second Family Preference table in October's visa bulletin (marked "Dates For Filing") someone with a family preference case can now file before their priority date becomes current, if your priority date is dated on or before the date in this second chart. At the same time you file the I-485 you can also file an I-131 for Advance Parole, and an I-765 for employment authorisation. These have no fee, and can be renewed as many times (again, for free) as is necessary until USCIS adjudicates your I-485, which cannot be before your priority date becomes current. You must still have maintained a valid nonimmigrant status (F-1, B-2, etc.) during your entire stay in the US until your I-485 is accepted by USCIS, because you are not an immediate relative.

After filing the I-485 the alien is considered to be in a period of authorised stay which will persist until their I-485 is finally adjudicated. This means that it does not matter if their I-94 expires after their I-485 has already been accepted for processing by USCIS.

You should not submit an I-693 medical with any AoS packet filed this way. The reason being they are only valid for a year from the date you submit them to USCIS, and most likely you are going to be waiting around that time, first for your priority date to become current, then for an interview slot at your local office. During that time your medical may expire, and you'd need to have another one performed, meaning the first one was essentially useless. It's much better to wait until you have an interview date, then get a medical completed beforehand and take it to hand-deliver to the officer at your interview.

your explanation is very clear and helpful. Just want to clarify that I totally understand what you said. Let's say I'll submit I-485 on November 10th, and we assume that USCIS will send an approval one month later which is December 10th. My wife must have a valid I-94 until December 10th, right? However, she doesn't need to have a valid I-94 as long as she has an approved I-94, doesn't she?

[Hypnos 6,578]

If you apply in November then you would need to be ahead of November's visa bulletin dates, which given that they aren't out yet isn't possible to say.

Assuming though that you are still able to file in November, the I-94 would only need to be valid until the day USCIS accepted the I-485 for processing. Say you mailed the I-485 out on 1st November, and it arrived 3rd November. They would probably issue you receipts (NOAs) dated around 5th November, and you would receive them around the 10th November (obviously I'm making all of these dates up). Once the I-485 NOA is in your hands, the I-94 expiration date no longer matters, as long as USCIS accepted the I-485 and issued the receipt before the I-94 expired. The I-485 will "trump" the I-94 expiration date, and you would be considered to be in a legal status even after the I-94 expired. This period of authorised stay would be in effect until the I-485 was adjudicated, be that months or even years, it makes no difference.

There is really no downside to filing for AoS. It lets your spouse remain in the US for however long it takes until their priority date becomes current; it lets them travel internationally (with AP); it lets them work in the US (with the EAD). The only way I could see it not being worth it is if they have loose ends that need to be tied up in their home country immediately, since the AP would not be issued for ~90 days from the date of filing, so they wouldn't be able to travel overseas for the first three months or so.

Edited October 2, 2015 by Hypnos

[codycody 31]

If you apply in November then you would need to be ahead of November's visa bulletin dates, which given that they aren't out yet isn't possible to say.

Assuming though that you are still able to file in November, the I-94 would only need to be valid until the day USCIS accepted the I-485 for processing. Say you mailed the I-485 out on 1st November, and it arrived 3rd November. They would probably issue you receipts (NOAs) dated around 5th November, and you would receive them around the 10th November (obviously I'm making all of these dates up). Once the I-485 NOA is in your hands, the I-94 expiration date no longer matters, as long as USCIS accepted the I-485 and issued the receipt before the I-94 expired. The I-485 will "trump" the I-94 expiration date, and you would be considered to be in a legal status even after the I-94 expired. This period of authorised stay would be in effect until the I-485 was adjudicated, be that months or even years, it makes no difference.

There is really no downside to filing for AoS. It lets your spouse remain in the US for however long it takes until their priority date becomes current; it lets them travel internationally (with AP); it lets them work in the US (with the EAD). The only way I could see it not being worth it is if they have loose ends that need to be tied up in their home country immediately, since the AP would not be issued for ~90 days from the date of filing, so they wouldn't be able to travel overseas for the first three months or so.

I agree with Hypnos,

You can send your I-485 in October with new chart shows in Oct Visa bulletin. But you have the other options is to go back your country to get your visa instead of stay in US and wait for AOS. Now AOS is taking up to 6 months to USCIS make decision while F2A only taking 1 year and 9 months to come to US (you are close to be current too).

For example, my case with PD is Sept 2013 would be current in June 2015 so I can file my i-485 while people with PD FeB 2013 (5 month later than mine) already came to US with their Green Card in hand while I am still waiting.

[codycody 31]

One more thing is since your I-130 was approved so NVC sent your file to Consultation in your country so you need to request them send it back to USCIS to be able to do AOS.

[travistrle 0]

One more thing is since your I-130 was approved so NVC sent your file to Consultation in your country so you need to request them send it back to USCIS to be able to do AOS.

NVC sends our file just one month before the interview day. In the past, since we have only one table in visa bulletin to refer when we can fill the I-485. It could happen as your case. However, right now we are able to file the I-485 8 months / 1 year up front. I totally agree that some cases would have the same situation as yours. It's hard to determine which one is the best. if I can make sure that my wife will come to US on June 2016, I won't submit I-485. Unfortunately, Visa Bulletin is unpredictable; it could be faster than we expect, it also could be slower than we guess. Anyway, thanks for sharing your case with us.

Edited October 3, 2015 by travistrle

[codycody 31]

NVC sends our file just one month before the interview day. In the past, since we have only one table in visa bulletin to refer when we can fill the I-485. It could happen as your case. However, right now we are able to file the I-485 8 months / 1 year up front. I totally agree that some cases would have the same situation as yours. It's hard to determine which one is the best. if I can make sure that my wife will come to US on June 2016, I won't submit I-485. Unfortunately, Visa Bulletin is unpredictable; it could be faster than we expect, it also could be slower than we guess. Anyway, thanks for sharing your case with us.

You are welcome,

I read some forum and saw some cases like you now. Some people planned to send i-485 in this Oct but NVC and their Consultation sent a letter to ask they will pre-processing their cases to ask for visa fee...They didn't know what to do since their case sent to outside of US. In my case, when my i-130 was approved I call USCIS to keep my file in US for my AOS and dont send it to my country so they didn't send it until I do my AOS in here. NVC will ask for pre-process before 6 months till PD is current.

[travistrle 0]

Can my wife study in college with EAD card?

[codycody 31]

Can my wife study in college with EAD card?

Why not?

EAD can explain she is here legal but she has to pay the full price like international student and out of state student.

[Pragati Soni 4]

Hi Guys

Another person in this forum having a situation like mine has posted his AOS package and this is the below he got from USCIS as per I797,

I-797, approval notice today. However, it's written like this:

"

The above petition has been approved. The petition indicates that the person for whom you are petitioning is in the United States and will apply for adjustment of Status. The information submitted with the petition shows that the person for whom you are petitioning is not eligible to file an adjustment of status application at this time.

Additional information about elegibility for adjustment of status may be obtained from the local USCIS office serving the area where the person for whom you are petitioning lives.

This is very confusing. What does this mean..will he get the EAD cards or not or whether the USCIS going to send the package to consular processing?

[Pragati Soni 4]

1) on my I864 what should be my Annual income on pg 5 - Part 6, point 2: Is this required to match the cost to company offer that I currently get ie Gross Pay.

or should it be adjusted gross income on IRS form 1040 EZ required on page 6.

2) me and my wife did joint returns for 2014 and now I am sending this Afidavit of support . Should I tick mark the point 17 of Part 6 one of more people listed in item numbers 3 6 9 12 do not need to complete form 864A because she is the intending immigrant. Please note that I am not using any of her income as I believe my income is sufficient enough..Its just that we have done joint returns.

Please advise

[newacct 688]

Hi Guys

Another person in this forum having a situation like mine has posted his AOS package and this is the below he got from USCIS as per I797,

I-797, approval notice today. However, it's written like this:

"

The above petition has been approved. The petition indicates that the person for whom you are petitioning is in the United States and will apply for adjustment of Status. The information submitted with the petition shows that the person for whom you are petitioning is not eligible to file an adjustment of status application at this time.

Additional information about elegibility for adjustment of status may be obtained from the local USCIS office serving the area where the person for whom you are petitioning lives.

This is very confusing. What does this mean..will he get the EAD cards or not or whether the USCIS going to send the package to consular processing?

The petition approval notice will always say that for categories that have a wait. You are the one who figures out whether you are eligible to file.

Edited October 5, 2015 by newacct

[Pragati Soni 4]

Some confusion here.

First, USCIS cannot and will not give you legal advice. You should consult with an experienced immigration attorney to do that.

Second, it is the case that a visa number is always available for immediate relatives of a US citizen (spouse, minor child, parent of a child over 21, or widow/er). For those under the Family Preference categories (F1/F2A/F2B/F3/F4) then it was the case that in order to file an I-485 you must have had an already-approved I-130 for which the priority date was current, and you must have always been in status.

October is the first month of the new system whereby your previously-filed I-130 does not necessarily have to have been approved in order for you to file the I-485. Using the second Family Preference table in October's visa bulletin (marked "Dates For Filing") someone with a family preference case can now file before their priority date becomes current, if your priority date is dated on or before the date in this second chart. At the same time you file the I-485 you can also file an I-131 for Advance Parole, and an I-765 for employment authorisation. These have no fee, and can be renewed as many times (again, for free) as is necessary until USCIS adjudicates your I-485, which cannot be before your priority date becomes current. You must still have maintained a valid nonimmigrant status (F-1, B-2, etc.) during your entire stay in the US until your I-485 is accepted by USCIS, because you are not an immediate relative.

After filing the I-485 the alien is considered to be in a period of authorised stay which will persist until their I-485 is finally adjudicated. This means that it does not matter if their I-94 expires after their I-485 has already been accepted for processing by USCIS.

You should not submit an I-693 medical with any AoS packet filed this way. The reason being they are only valid for a year from the date you submit them to USCIS, and most likely you are going to be waiting around that time, first for your priority date to become current, then for an interview slot at your local office. During that time your medical may expire, and you'd need to have another one performed, meaning the first one was essentially useless. It's much better to wait until you have an interview date, then get a medical completed beforehand and take it to hand-deliver to the officer at your interview.

Thanks Hypnos, I spoke to USCIS and they said I can send my wife's AOS package and she is eligible to stay till the i485 is going to be adjusted.

[Pragati Soni 4]

Planning to send this cover letter. Can you please review it for grammar and advise I have not missed anything to be sent along with AOS package:

Cover Letter:

Dear Sir/Madam,

I had filed for a green card petition for my wife under F2a category on Dec 30th 2014 (priority date). This I-130 petition was approved on Sep 28 2015. Initially I had requested for a consular processing for this case, however as per the October visa bulletin under applicant’s country of birth- India, I understand that my wife can request USCIS for an adjustment of status. My wife is currently visiting me and is going to be in the US until until Nov 22 2015.

In view of the recent changes visa bulletin for Oct, I would appreciate if you can kindly allow us to submit the paperwork for an Adjustment of status in the US itself, instead of consular processing in India. Appreciate your help and acknowledgement of the enclosed paperwork.

Enclosed paper work:

1. Fees-cheque of $1070
2. i-485 application
3. i-765
4. i-131
5. i-864 –from petitoner
6. i-g325a-applicant
7. i-693 applicant medical form to be submitted during interview.
8. 6 photos- of applicant
9. Applicant’s Affidavit of birth by parents & School record stating birth date
10. Passport copy (biographic page, US Visa page, entry stamp)
11. Marriage certificate copy
12. Petitioner-Greencard copy, Driving licence copy, SSN copy.

Please let me know if you need to know anything else.

Thank you,

Petitoner & Applicant

Edited October 7, 2015 by Pragati Soni

[Pragati Soni 4]

Please advise folks !

[codycody 31]

I have the same situation as yours. I'm not sure whether or not I should fill I-485. I asked one attorney, but he told me that I shouldn't do that since the tourist visa doesn't allow the applicant to come to US with dual intent.

My wife's I-94 will be expired on February 4th.

I agree with you, you should not file I-485 under a tourist visa.

Link here http://www.visajourney.com/content/i130guide2

BE WARNED:

You must qualify to file for an I-130 in the US. Not everyone does, and in some cases doing so can be considered fraud and result in being deported and banned from re-entry into the US for a period of time. If you attempt to file and you do not qualify your legal status in the US can be placed in jeopardy. J1 Visa holders will almost always require a waiver and should consult with an immigration lawyer or the USCIS for more information. If you have any doubt, consult an immigration attorney.

If your fiance/fiancee came to the US on a tourist visa with the intent of immigration and marriage, and you are not yet married, then he/she should return to his/her home abroad, and the K-1 visa should be filed (using an I-129f) instead of the I-130 to avoid a denial, deportation, or even being banned from re-entry to the US.

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.

The above conditions are serious and can result in the separation of families for many years if not taken seriously.