Should I file AOS now? - i-130 was approved a year ago

[Coni Coni 0]

Hi,

 

I'm currently in the USA on B2 visa. My wife (GC holder who lives in the USA with my US citizen daughter) has filed I-130 on behalf of me and I-130 was approved a year ago. I was granted B2 visa while i had approved i-130. My i-94 ends in April.

 

My priority date is Dec 3, 2015. When I check visa bulletin, looks like my priority date will be current in November 2017.

 

Because my visa is ending soon, I have to either extend my B2 visa or apply for adjustment of status.

 

I'm ready to file AOS. However, when I go to visa bulletin page and check the second table (DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS), from my understanding it says that priority dates earlier than 22NOV15 can send their documents for AOS.

 

Am I correct?

 

Or Can I go ahead send my documents regardless of that date?

 

your help greatly appreciated.

[Georgia16 2,858]

It's not you turn in line so no you can't just sent in your AOS. You will hear from them when it is your turn.

[MeAlone 161]

1 hour ago, Coni Coni said:

Hi,

 

I'm currently in the USA on B2 visa. My wife (GC holder who lives in the USA with my US citizen daughter) has filed I-130 on behalf of me and I-130 was approved a year ago. I was granted B2 visa while i had approved i-130. My i-94 ends in April.

 

My priority date is Dec 3, 2015. When I check visa bulletin, looks like my priority date will be current in November 2017.

 

Because my visa is ending soon, I have to either extend my B2 visa or apply for adjustment of status.

 

I'm ready to file AOS. However, when I go to visa bulletin page and check the second table (DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS), from my understanding it says that priority dates earlier than 22NOV15 can send their documents for AOS.

 

Am I correct?

 

Or Can I go ahead send my documents regardless of that date?

 

your help greatly appreciated.

I guess you can extend your tourist visa 2 times, try, even if the 1st extension is not approved, you are legal until you receive the notice, have a valid reason why do you extend your visa, specially the 2nd time. Usually the extension works

Tasha

[MeAlone 161]

each extension is usually for 6 months

[geowrian 22,338]

1 hour ago, EricTasha said:

I guess you can extend your tourist visa 2 times, try, even if the 1st extension is not approved, you are legal until you receive the notice, have a valid reason why do you extend your visa, specially the 2nd time. Usually the extension works

Tasha

I'll just add that the extension can take a while to get a decision, and if it is denied then you would accumulate unlawful presence starting from the I-94 expiration. That would severely limit the chances of getting/using another tourist visa. It shouldn't affect the I-130 (unless the overstay is 180 days or longer, since that comes with a outright ban).

[MeAlone 161]

6 hours ago, geowrian said:

I'll just add that the extension can take a while to get a decision, and if it is denied then you would accumulate unlawful presence starting from the I-94 expiration. That would severely limit the chances of getting/using another tourist visa. It shouldn't affect the I-130 (unless the overstay is 180 days or longer, since that comes with a outright ban).

No, with extension in process even if it's denied, no unlawful time running. I had 2 extensions myself and my son too, denied on the 2nd one but waiting for the denial for 6 months, while extension is in process, no problem, just keep all the copies

Tasha

[geowrian 22,338]

7 minutes ago, EricTasha said:

No, with extension in process even if it's denied, no unlawful time running. I had 2 extensions myself and my son too, denied on the 2nd one but waiting for the denial for 6 months, while extension is in process, no problem, just keep all the copies

Tasha

Alright. I appreciate sharing your personal experiences. That said, there is conflicting information regarding when overstay begins.

 

 

https://www.avvo.com/legal-answers/i539-pending-i94-expires-soon--if-i539-gets-denied-1089448.html

Q: "If i539 gets denied what will be the start date of overstay?"

A1: "the day I-94 expired and it is advisable you not stay over 180 days past I-94"

A2: "Unlawful presence will start to accrue from the time your current visa expires if your extension is denied."

A3: "You will be out of status as of the date your I-94 expired. You will be accruing unlawful presence as of the date of the denial." (Note that part 2 of this answer differs from the other 2 lawyers' responses)

 

[KazuriSana 324]

10 hours ago, geowrian said:

Alright. I appreciate sharing your personal experiences. That said, there is conflicting information regarding when overstay begins.

 

A2: "Unlawful presence will start to accrue from the time your current visa expires if your extension is denied."

• This one is completely WRONG. Your visa is not repeat IS NOT an indication of how long you can legally remain in the US. That is indicated in the I-94. This kind of misinformation is what gets some people in piles of cow dung. Assume someone has a 5-year B1/B2 visa, they jet into the U.S. and falsely believe they can remain for 5 years because some quack website published that piece of misinformation!

[MeAlone 161]

8 minutes ago, BlessedAssurance said:

10 hours ago, geowrian said:

Alright. I appreciate sharing your personal experiences. That said, there is conflicting information regarding when overstay begins.

 

A2: "Unlawful presence will start to accrue from the time your current visa expires if your extension is denied."

• This one is completely WRONG. Your visa is not repeat IS NOT an indication of how long you can legally remain in the US. That is indicated in the I-94. This kind of misinformation is what gets some people in piles of cow dung. Assume someone has a 5-year B1/B2 visa, they jet into the U.S. and falsely believe they can remain for 5 years because some quack website published that piece of misinformation!

It's simple, me myself and my son, we were always aware of the time frame and usually the extension is approved inside of 6 months, my son got out of US 1 week before 6 months time went out, then I got his 2nd extension denial but he didn't wait whole 6 months just in case. So it's worth to do it and keep all documents copies

Tasha

[MeAlone 161]

if your tourist visa is NOT overstayed longer than 6 months, no ban.

If the extension is approved, no ban for 6 months more, if the 2nd extension is approved, no ban for another 6 months, you are all legal yet get out 1 week before 6 months extension or denial is elapsed

Tasha

Edited February 23, 2017 by EricTasha

[geowrian 22,338]

12 minutes ago, BlessedAssurance said:

11 hours ago, geowrian said:

A2: "Unlawful presence will start to accrue from the time your current visa expires if your extension is denied."

• This one is completely WRONG. Your visa is not repeat IS NOT an indication of how long you can legally remain in the US. That is indicated in the I-94. This kind of misinformation is what gets some people in piles of cow dung. Assume someone has a 5-year B1/B2 visa, they jet into the U.S. and falsely believe they can remain for 5 years because some quack website published that piece of misinformation!

Yes, it's wrong. I think what was meant was the I-94 but they misspoke. And that is a problem, hence why having multiple others respond is good. But I wouldn't call AVVO a "quack website" by any means. That's like calling VJ a quack website because somebody posted incorrect information (even if the intent was correct).

 

5 minutes ago, EricTasha said:

if your tourist visa is NOT overstayed longer than 6 months, no ban

Tasha

Less than 180 days (not "longer than 6 months")*

 

But yes, I'm agreeing with you. I just noted that even without a ban, any overstay can make getting/using a tourist visa in the future much more difficult (proving that you won't overstay again to the CO and/or CBP is a hurdle). Anyway, I think this is going off topic now.

[f f 725]

Timely adjudication is also important because an applicant is not considered to be maintaining status simply because an extension application is pending [See Matter of Teberan , 15 I&N Dec. 689 (BIA 1976)]

 

from https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-12693/0-0-0-12738.html

 

this implies that overstay starts from the date the i94 expired and is only reset once the extension is approved. and since overstay is not forgiven for spouses of lpr they would not be able to aos if they overstay. play it safe and just wait it out out of country.

 

good luck

 

[geowrian 22,338]

2 minutes ago, f f said:

Timely adjudication is also important because an applicant is not considered to be maintaining status simply because an extension application is pending [See Matter of Teberan , 15 I&N Dec. 689 (BIA 1976)]

 

from https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-12693/0-0-0-12738.html

 

this implies that overstay starts from the date the i94 expired and is only reset once the extension is approved. and since overstay is not forgiven for spouses of lpr they would not be able to aos if they overstay. play it safe and just wait it out out of country.

 

good luck

 

Actually, I completely overlooked that. Thanks for the reminder.

 

Yes, any overstay is not permitted for AOS for the spouse of an LPR. A bar does not need to be in place (i.e. >= 180 days overstay upon exit). In practical terms, this means that if the OP applies for an extension but it is denied and the I-94 is expired, then he would not qualify for AOS. He would need to then exit the US and go through consular processing to get the immigrant visa instead.

[MeAlone 161]

That's why to visa extension is reasonable to make it if your priority date is close to be current, the visa extension helps you to stay and do AOS inside US which is much more reliable. But if you just extend your tourist visa and stay, then go out, the next time the border control will ask if you worked illegally and they won't give you a long stay on I-94 and even can send you back. Also the visa extension is good when in the origin country happened to be a disaster, earthquake like it was in my son case and we wanted him safe with us.

Knowing how the law works and if you need it, use it with no harm to yourself or your family

Tasha

 

[f f 725]

since your i94 will expire over 7 months from when the priority date should be current you will need 2 extentions to be approved so that you are in status when you aos. having a extention pending does not keep you from being out of status. besides un authorized work is not forgiven either for spouses of lpr.