Adjustment of Status for Spouse on ESTA

[aseleon 0]

Hello,

I have some questions regarding adjustment of status for my spouse who is staying in the United States on ESTA.

We arrived together at San Francisco on December 14th, 2015 and stayed there until December 31st, 2015. Although I am a citizen of the United States, I also hold a dual citizenship in South Korea and as all of our family are in Korea, we weren't planning on staying here at first.

On the 31st, we flew to Columbus, Ohio where I was born to enjoy my hometown before heading back home to South Korea, but then later decided that we would settle down. She still has a returning flight back to Korea on March 10th, 2016 if things don't work out.

However, when we consulted with an immigration attorney very briefly, she has confirmed that it is possible to file for an AOS under my situation so we decided to go for it.

I read up on some guides and examples regarding AOS in ESTA but I've become confused due to dated information on the internet.

We got married on February 19th, 2016 (68 Days after entering the US) at the Franklin County Probation Court(Columbus, OH) and received the certificate this week and are on process of assembling the I-130 Package and the I-485 Package.

Ok, so here are my questions:

1. I'm wondering if my spouse also needs to file an I-601 along with I-485 in order to allow her to overstay her ESTA (Which ends on March 12th, 2016).

2. And she does not have her actual birth certificate from South Korea with her, and some suggested that we need it to be apostilled copies to be filed with the I-485. She might be able to get a scanned copy of it through email.

3. My current approximate income is $12,000 and I know that the updated minimum requirement for 2016 is $20,025. Combined with my spouse (the intending immigrant), it becomes about $21,000.

We do have about $40,000 in asset(Checking account balance).

Neither of us have filed any taxes in the United States as we both lived in South Korea until now.

From what I've figured out, the income could be combined and supported with additional asset if needed. But I'm still worried that we're cutting it too tightly. Will it become a possible problem during the process?

Thank you!

[NancyNguyen 1,658]

1. No 601 needed.

2. Scanned picture and translation of it are fine. She will need original copy at interview.

3. You can't include income from immigrant with no work permit, no working eligibility in the States. If you can prove your checking has a stable balance of 6 months or more, it will result in RFE. Putting some cash together short term won't help. It is better to find a joint sponsor.

Please keep in mind ESTA AOS denial can't be appealed, will result in removal and/or banned time. Good luck.

[aseleon 0]

So the income from the intending immigrant section from another website which states:

Income from the intending immigrant can be used if that income will continue from the same source after immigration, and if the intending immigrant is currently living in your residence.

If the intending immigrant is your spouse, his or her income can be counted regardless of current residence, but it must continue from the same source after he or she becomes a lawful permanent resident. Evidence of the same source of the income must be provided ... an intending immigrant in this case does not need to complete Form I-864A, unless the intending immigrant has a spouse and/or children immigrating with him or her.

is all on the basis of the intending immigrant currently being able to work in the United States?

Which kind of doesn't make sense to me.

Can anyone clarify this?

Oh, and is there a search function here other than the Google Custom Search?

It's kind of hard to navigate without it.

Thank you.

Edited March 2, 2016 by aseleon

[NancyNguyen 1,658]

Intending immigrant's income can be used when he/she is allowed to work as of when I-864 is signed and the income will be same from that work after he/she has greencard. It is usually from someone with work visas like H1Bs. Your wife is here on ESTA, she is not allowed to work.

[Anh map 2,098]

You need to get your tax returns sorted out. The US taxes on worldwide income. You may not owe tax, but if you've earned more than $10,000 in any of the past 3 years outside the US then you will need to file a tax return. (See the form I-864 for more information as well as the I-864 FAQ link in my signature)

As previously stated, your spouse's income can only be counted if it will continue from the same source upon relocating. Since she came on a visitor visa that seems unlikely.

Assets are factored at a 3:1 ratio. $40K = $ 13,333

Some documents need to be originals so scans would not be accepted. Check the form instructions as well as the VJ Guides for more information.

It sounds like many of your important documents are at home in Korea. You'll need to get them somehow now that you've made an unplanned move to the US.

[newacct 688]

Where does your spouse currently get "income" from? I wouldn't imagine she is already working under the table while on VWP, so is she currently getting some kind of non-work income from her home country or something?

[EM_Vandaveer 2,417]

You may want to get a joint sponsor to be on the safe side. You can't use her income (I'm assuming it's from her South Korean job, so it won't continue now that she's settled here.)

Like others said you have to sort out filing taxes for the last 3 years unless you earned less than the threshold ($10,300 this year).

About the birth cert. No originals have to be sent when filing. However you should have originals with you for the interview as they can ask for it.

[aseleon 0]

Thank you everyone for the replies.

And my wife's a freelancer who works online. The company is based in Korea but since it's a work-at-home job, she's continuing to work while staying in the US.

I don't think I'll be settling my taxes since I was enlisted in the Korean Army for the past two years and no they do not make more than... $1,600 a year. I wouldn't have worked there if it wasn't mandatory for maintaining my dual citizenship.

My current income is from a freelance job which I started 6 months ago.