Adjustment of status; already started residency process?

[rahilka 0]

My husband and I have been married since December 2013, and we have an 18 month old daughter.   He is British, I am American.  We were living in Germany at the time of our wedding, and we married in Denmark.  Shortly after that, we moved to Honduras, where we lived until Jan 2017.  We both have legal residence in Honduras.

 

We started his US residency process in May 2016, but it has gone slower than anticipated.  Our I-130 was only finally approved in March 2017.  We then submitted all personal and financial documents for his IR-1 visa, but then in May 2017 we were asked for a few additional documents, and we are now waiting to receive those, so we can file them.

 

He entered the US at the end of January 2017 on a six month visa (not the VWP), and we expected at that time that before the end of the six months, he'd have a visa interview scheduled, and he'd go back to Honduras for that, and then return quickly afterwards with his approved visa.  However, we are now less than two months from when he has to leave the country, and all signs point to him having several months of waiting still ahead.   I hate to have him leave and leave me here alone with our 18 month old.  In addition, I recently found out I am pregnant again (due in November).

 

Basically, when he entered the country in January, he had every intention of returning to his country of current residence (Honduras) before his six months ran out.  However, given how long this process has taken, and now me being pregnant, I would like to know if there is a way for him to just stay in the US (legally, without just overstaying his visa) until his visa appointment is scheduled in Honduras.

 

Has anyone been in a similar situation?  Any advice, or ideas on who to contact to get a firm answer?  

[Jordan8768 107]

Unfortunately it's probably best you wait it out. Since you started the process for him to become a resident I would think that any attempt to stay would be considered visa fraud. 

 

That being said many people say intent to stay is no longer grounds for denial of visa. 

 

The only way he could stay in my understanding would be to adjust his status from within the US and cancel the forms you've already sent off. You should wait and see what other forumers have to say as they'll have more experience and knowledge than me 

[Transborderwife 4,666]

16 minutes ago, Jordan8768 said:

Unfortunately it's probably best you wait it out. Since you started the process for him to become a resident I would think that any attempt to stay would be considered visa fraud. 

 

That being said many people say intent to stay is no longer grounds for denial of visa. 

 

The only way he could stay in my understanding would be to adjust his status from within the US and cancel the forms you've already sent off. You should wait and see what other forumers have to say as they'll have more experience and knowledge than me 

I disagree.  Intent is established upon entry and no longer an issue as you mentioned.  There have been a few here who have adjusted in country with a petition already in place 

[Jordan8768 107]

Honestly since you have very good reason for him to stay it should be fine

[geowrian 22,337]

The legal options are:

1. File for AOS. Send the NOA1 from the I-130 along with the AOS package (since you did not concurrently file). Once filed, it grants authorized stay while the case is pending. He won't need to undergo consular processing at the embassy in this route.
2. Request an extension of stay (EOS) before the expiration of the I-94. The sooner, the better. Authorized stay is granted while that is pending, and if it's not frivolous and it is filed timely, then he will not accrue unlawful presence.
3. Leave the US prior to the I-94 expiring.

Options 1 and 3 are preferred...EOS does have some risks if denied (and deemed frivolous), plus having to quickly leave the US unexpectedly to avoid overstaying if it is denied for any reason. It's unlikely, but possible.

Edited June 4, 2017 by geowrian

[JFH 12,190]

1 hour ago, Jordan8768 said:

Unfortunately it's probably best you wait it out. Since you started the process for him to become a resident I would think that any attempt to stay would be considered visa fraud. 

 

That being said many people say intent to stay is no longer grounds for denial of visa. 

 

The only way he could stay in my understanding would be to adjust his status from within the US and cancel the forms you've already sent off. You should wait and see what other forumers have to say as they'll have more experience and knowledge than me 

Incorrect. You also have incorrect advice on this subject in another thread which was locked before I could comment. 

 

There is absolutely no indication of any visa fraud here. It is not fraudulent to adjust status once you have arrived and have been successfully admitted if you are the immediate relative of a USC. There are many here who don't like that fact but it doesn't make it untrue. And even if there had been intent (which there wasn't) it would now be irrelevant as intent would not be enough to reject an AOS application for an immediate relative.

 

Also, you are incorrect in saying that only way for him to stay longer is to adjust his status - if he is on a B-2 visa he can apply for an extension. 

 

 

[Jordan8768 107]

8 minutes ago, JFH said:

Incorrect. You also have incorrect advice on this subject in another thread which was locked before I could comment. 

 

There is absolutely no indication of any visa fraud here. It is not fraudulent to adjust status once you have arrived and have been successfully admitted if you are the immediate relative of a USC. There are many here who don't like that fact but it doesn't make it untrue. And even if there had been intent (which there wasn't) it would now be irrelevant as intent would not be enough to reject an AOS application for an immediate relative.

 

Also, you are incorrect in saying that only way for him to stay longer is to adjust his status - if he is on a B-2 visa he can apply for an extension. 

 

 

Calm down. I just gave my opinion and as we can see I was wrong! Well now I know too and I can give correct advice. 

 

Im no immigration lawyer lol

[Ryan H 3,812]

Moved from IR-1/CR-1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas forum.

[Jojo92122 1,924]

8 hours ago, Jordan8768 said:

Unfortunately it's probably best you wait it out. Since you started the process for him to become a resident I would think that any attempt to stay would be considered visa fraud. 

 

That being said many people say intent to stay is no longer grounds for denial of visa. 

 

The only way he could stay in my understanding would be to adjust his status from within the US and cancel the forms you've already sent off. You should wait and see what other forumers have to say as they'll have more experience and knowledge than me 

Please wait for more experienced posters to post before you start posting advice.  You have been wrong in many threads.

 

This is not visa fraud.  Stop posting what you think and post researched answers.  What you think has been completely wrong.

 

Not "many people."  It's the law.  How about saying the law say immigrant intent is not an issue when the spouse of a US citizen adjust status.  Much better than "many people." 

 

Your understanding is lacking.  Stop giving bad, horrible advice.  There is no need to "cancel the forms" when they can use the I-130 to adjust status.

[Jordan8768 107]

6 hours ago, Jojo92122 said:

Please wait for more experienced posters to post before you start posting advice.  You have been wrong in many threads.

 

This is not visa fraud.  Stop posting what you think and post researched answers.  What you think has been completely wrong.

 

Not "many people."  It's the law.  How about saying the law say immigrant intent is not an issue when the spouse of a US citizen adjust status.  Much better than "many people." 

 

Your understanding is lacking.  Stop giving bad, horrible advice.  There is no need to "cancel the forms" when they can use the I-130 to adjust status.

If you bothered to read what I posted I did say to wait for more experienced posters to say something. I was just giving my opinion and gave the disclaimer that it was probably false. So get off your high horse and rather than attack people for being wrong just give them advice too? This is a forum and discussions take place. Not everything is true and unfortunately not everybody is a certified immigration attorney. 

[Transborderwife 4,666]

I think that rather than attack each other it's best for us all to just try and better advise and move on  we all are learning here everyday and are here to support each other.

[Jordan8768 107]

54 minutes ago, Transborderwife said:

I think that rather than attack each other it's best for us all to just try and better advise and move on  we all are learning here everyday and are here to support each other.

Exactly. It's best to have a discussion rather than get mad! 

 

Anyway, to the original poster, it seems like you'll be fine and there's a way. 

 

Good luck with your journey and I apologize for my iffy advice haha

[rahilka 0]

Thank you all for the answers (and spirited debate!).

 

It seems that our options, according to geowrian, are to either file an AOS, or file an EOS.  Does anyone else have any advice as to filing one versus the other?  Does anyone know which we are likely to have an answer on first?  I would just hate to find out at the last minute that we were denied.  Also, does anyone have a theory as to which would lead to the fastest resolution of his residency process?

 

If we file for the AOS, the form to file is the I-485, correct?  I'm already stumped on the first question, which is why you are applying for AOS (I was going to try to copy the options here, but for some reason that's not working).  Anyway, none of the answers apply to us - can anyone who is familiar with this form comment as to which option we should choose?

 

[geowrian 22,337]

17 minutes ago, rahilka said:

If we file for the AOS, the form to file is the I-485, correct?  I'm already stumped on the first question, which is why you are applying for AOS (I was going to try to copy the options here, but for some reason that's not working).  Anyway, none of the answers apply to us - can anyone who is familiar with this form comment as to which option we should choose?

Follow the guide here (minus the I-130 sections): http://www.visajourney.com/content/i130guide2

 

You would choose option "a" since you will have a visa number available immediately (as the spouse of a USC) with your I-130. You are permitted to concurrently file the I-130 with the I-485. You didn't (and that's fine), so sending the I-130's NOA1 will be sufficient instead.

From the I-485 instructions:

"...You are filing this application with a completed relative petition, special immigrant juvenile petition, or special immigrant military petition which, if approved, would make an immigrant visa number immediately available to you."

Edited June 5, 2017 by geowrian

[rahilka 0]

21 minutes ago, geowrian said:

Follow the guide here (minus the I-130 sections): http://www.visajourney.com/content/i130guide2

 

You would choose option "a" since you will have a visa number available immediately (as the spouse of a USC) with your I-130. You are permitted to concurrently file the I-130 with the I-485. You didn't (and that's fine), so sending the I-130's NOA1 will be sufficient instead.

OK, that makes sense, about choosing option A - I see now how that's the correct option for us.  It looks like I essentially file the I-485, include copies of all the documents I already filed with the NVC, and include a copy of my I-130 and NOA-1/I-797.  Does that sound like I understand correctly?

 

Do you have any idea how long it takes for them to acknowledge this filing?  I should be able to get this filed this week, but would ideally like to have confirmation that everything has been processed and we're doing things properly before his visa expires on July 25th.

 

[Edit - adding another question] As mentioned above, the NVC had requested additional documents.  We are still waiting on one of them (police report from Germany).  Should I go ahead and file the I-485 now, with what I had previously submitted to the NVC, or should I wait until we have that police report?

 

Also, I'm assuming that with this route, we should assume that he can not leave the country until his residency process is completed, however many months that might take - is that a correct assumption?  Or can he still come and go?  [Edit - I see now that you file a I-131 for a special travel document.  We were planning a trip to Europe for a couple weeks in September - should we go ahead and file for this, once we've filed the I-485?]

 

Thank you SO much for the help!

Edited June 5, 2017 by rahilka