Questions regarding GREEN CARD

[emchar 0]

I am trying to fill out the forms for my husband and having a little difficulty but not enough to consult a lawyer.

We have a legitimate marriage; I am 20, he is 27. We met and fell in love in Guatemala when I lived there in 2016 for 6 months, I returned alone for 4 months, brought him here (on a Visitor visa), and moved to Charlotte where we live together and I have just begun a new job. His stay expires 9/2/17. 

I have already completed in entirety the i130, i130A, i485, and the medical exam (paid and sealed). 

Lastly, (unfortunately) I have held off on completing the i864 until the final step which was a big mistake, and now I am just completely confused.

As stated, I was out of the US for half the year, so my W2 doesnt show enough income to support, and with my paystubs (only have for one months' worth), it doesnt show that I will make enough money because my tips are not included in the net amount. The 125% of the HHS poverty guidelines states I need to make $20,300, which I do, but have a very hard time supporting this evidence with just my stubs (which will come out to about $19,000 not including the tip wages.)

My husband owns a legitimate Salon business in his country, and collects wages from there as well as have proof of that income from Guatemala. Can we include this information to meet the minimum?

If not, and I need to have another person (such as my mom), does she need to live with us?

If we submit the documents including the i864 does that grant him permission to overstay past 9/2/17, and if the i864 is denied is the whole case denied?

Thanks in advance

[Jordan8768 107]

4 minutes ago, emchar said:

I am trying to fill out the forms for my husband and having a little difficulty but not enough to consult a lawyer.

We have a legitimate marriage; I am 20, he is 27. We met and fell in love in Guatemala when I lived there in 2016 for 6 months, I returned alone for 4 months, brought him here (on a Visitor visa), and moved to Charlotte where we live together and I have just begun a new job. His stay expires 9/2/17. 

I have already completed in entirety the i130, i130A, i485, and the medical exam (paid and sealed). 

Lastly, (unfortunately) I have held off on completing the i864 until the final step which was a big mistake, and now I am just completely confused.

As stated, I was out of the US for half the year, so my W2 doesnt show enough income to support, and with my paystubs (only have for one months' worth), it doesnt show that I will make enough money because my tips are not included in the net amount. The 125% of the HHS poverty guidelines states I need to make $20,300, which I do, but have a very hard time supporting this evidence with just my stubs (which will come out to about $19,000 not including the tip wages.)

My husband owns a legitimate Salon business in his country, and collects wages from there as well as have proof of that income from Guatemala. Can we include this information to meet the minimum?

If not, and I need to have another person (such as my mom), does she need to live with us?

If we submit the documents including the i864 does that grant him permission to overstay past 9/2/17, and if the i864 is denied is the whole case denied?

Thanks in advance

You can use assets with your i864 to meet the minimum, such as cars or property.  You can also get a joint sponsor; a willing friend or family member. The joint sponsor does not need to live with you. You can include your husbands income too. 

 

As long as you file everything before his current visa expires he is allowed to stay. 

 

I hope this is helpful! 

[geowrian 22,338]

If the income will continue from the same source after permanent residency is obtained, then it can be included. He needs to show evidence of that income. A joint sponsor - if you needed one - does not need to live with you.

 

Filing the I-485 grants authorized stay while it is processing, so the stay will not be an issue and it will not accrue unlawful presence as long as it is filed before his I-94 expires.

 

The I-864 is a supporting document required for the I-485. The I-485 would be denied. However, they almost always send an RFE/RFIE for the I-864 before they deny the entire case. I wouldn't rely on them doing so, but I would be quite surprised if you submitted the packet with a completed I-864 and they didn't come back with an RFIE or RFE (assuming it was insufficient or incomplete).

[Ryan H 3,834]

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

[BritGirl88 43]

21 hours ago, Jordan8768 said:

As long as you file everything before his current visa expires he is allowed to stay. 

If you end up filing after his authorized stay has expired, your husband's overstay will be forgiven once you file the Adjustment of Status paperwork. He will be then be legally authorized to stay in the US while the AOS is being processed.

[geowrian 22,338]

9 minutes ago, BritGirl88 said:

If you end up filing after his authorized stay has expired, your husband's overstay will be forgiven once you file the Adjustment of Status paperwork. He will be then be legally authorized to stay in the US while the AOS is being processed.

Ignored* (not forgiven). If AOS is filed after the I-94 expires, then - although they have authorized stay and the overstay won't impact the AOS status as the spouse of a USC - unlawful presence accrues while AOS is pending. If AOS denied or they relinquish/abandon the green card at a later date, a ban for unlawful presence can be issued upon exit from the US. As such, filing while still in status is always preferred.

[azblk 338]

43 minutes ago, geowrian said:

Ignored* (not forgiven). If AOS is filed after the I-94 expires, then - although they have authorized stay and the overstay won't impact the AOS status as the spouse of a USC - unlawful presence accrues while AOS is pending. If AOS denied or they relinquish/abandon the green card at a later date, a ban for unlawful presence can be issued upon exit from the US. As such, filing while still in status is always preferred.

Not entirely true. The unlawful presence clock is reset by a lawful admission into the country or a change in status. So it would not apply to a green card holder who gives up or abandons their green card.

[geowrian 22,338]

1 minute ago, azblk said:

Not entirely true. The unlawful presence clock is reset by a lawful admission into the country or a change in status. So it would not apply to a green card holder who gives up or abandons their green card.

Hmm...I recall a case of this exact circumstance a couple months back. He overstayed his I-94, filed for AOS, and got approved. He made regular visits abroad for several years. Then he decided to live abroad and voluntarily abandoned his green card. At around the 8 year mark, he and his wife decided to return the US, but was denied due to a 10 year bar that was in place for unlawful presence. I'll see if I can find the case...

[azblk 338]

1 minute ago, geowrian said:

Hmm...I recall a case of this exact circumstance a couple months back. He overstayed his I-94, filed for AOS, and got approved. He made regular visits abroad for several years. Then he decided to live abroad and voluntarily abandoned his green card. At around the 8 year mark, he and his wife decided to return the US, but was denied due to a 10 year bar that was in place for unlawful presence. I'll see if I can find the case...

He  must have been wrongly denied or they were other bars.  According to the USCIS manual - unlawful presence is based on last lawful admission or status change.

[Jordan8768 107]

1 hour ago, BritGirl88 said:

If you end up filing after his authorized stay has expired, your husband's overstay will be forgiven once you file the Adjustment of Status paperwork. He will be then be legally authorized to stay in the US while the AOS is being processed.

Oh yes I forgot that part haha. But during the period of overstay and filing you are at risk of deportation. If you're here on the VWP I know you have no rights during the out of status period

[geowrian 22,338]

36 minutes ago, azblk said:

He  must have been wrongly denied or they were other bars.  According to the USCIS manual - unlawful presence is based on last lawful admission or status change.

Unfortunately, I cannot find the thread. =\ Apparently there's a bug/feature that prevents searching for certain words (like "ignored") that I know were in the post (and words not in almost every thread). I also tried searching by other members that I know posted in the thread.

 

I agree that's normally the case, which is why the lot of us were confused as to why the bar was put into place. The unlawful presence must be continuous for the bar to be applied. Our *assumption* was that since there was a period of unlawful presence in excess of 1 year (even though it wasn't his last entry into the US), that's what happened. The timing matched perfectly. The OP never updated the case, but since they were into year 9 at the time of the refusal, I assumed they decided to just wait out the bar. Or maybe they were mistaken and the bar was for something else.

 

Anyway, I think this is getting off topic now. Either way, OP's best case is to file before the I-94 expires.

Edited June 8, 2017 by geowrian

[azblk 338]

23 minutes ago, geowrian said:

Anyway, I think this is getting off topic now. Either way, OP's best case is to file before the I-94 expires.

This whole unlawful presence thing is kind of confusing but i don't really think it makes a difference when one files as long as they file because while you don't accrue illegal presence while  AOS is pending, if the petition is denied then unlawful presence count starts from the day after expiry of your authorized stay ( last date on i-94).

Hypothetically if you file one month before expiry of your i-94 and then your case takes longer than a year to be denied. Then you would still be subject to the 10 year bar despite having filed when still in status. In any case those bars only apply if you leave the country but since you are still in the country you can still seek other forms of relief.

Edited June 8, 2017 by azblk