Questions about I-485

[FrankSinatra 14]

When filling the I-485, if Im applying for AOS while Im here on the visa waiver program ESTA after getting married to my USC girlfriend, 

 

What is my current USCIS status?

 

And which one of this options should I check? 

 

a)An immigrant petition giving me an immediately available immigrant visa number that has been approved. (Attach a copy of the approval notice, or a relative, special immigrant juvenile, or special immigrant military visa petition filed with this application that will give you an immediately available visa number, if approved.)

 

b)My spouse or parent applied for adjustment of status or was granted lawful permanent residence in an immigrant visa category that allows derivative status for spouses and children.

 

c)I entered as a K-1 fiancé(e) of a U.S. citizen whom I married within 90 days of entry, or I am the K-2 child of such a fiancé(e). (Attach a copy of the fiancé(e) petition approval notice and the marriage certificate.)

 

d)I was granted asylum or derivative asylum status as the spouse or child of a person granted asylum and am eligible for adjustment.

 

e)I am a native or citizen of Cuba admitted or paroled into the United States after January 1, 1959, and thereafter have been physically present in the United States for at least 1 year

 

f)I am the husband, wife, or minor unmarried child of a Cuban described above in (e), and I am residing with that person, and was admitted or paroled into the United States after January 1, 1959, and thereafter have been physically present in the United States for at least 1 year.

 

g)I have continuously resided in the United States since before January 1, 1972

 

h)Other basis of eligibility. Explain (for example, I was admitted as a refugee, my status has not been terminated, and I have been physically present in the United States for 1 year after admission). If additional space is needed, see Page 2 of the instructions.

 

 

[Hypnos 6,576]

 

Status would be "VWP". 

[Bzlibem 111]

Either a or b. I heard that both of them are good. I personally checked a. Did AOS too but from B visa. 

And if you overstayed VWP you are now undocumented till you get your green card. 

[geowrian 22,337]

Just now, Bzlibem said:

Either a or b. I heard that both of them are good. I personally checked a. Did AOS too but from B visa. 

And if you overstayed VWP you are now undocumented till you get your green card. 

B would not apply here. Spouse of a USC is an immediate relative category, which does not allow derivatives. Option a would be appropriate.

Not quite. He will be out of status once his I-94 expires (90 days after entry max), but he will have authorized stay once AOS is filed. Authorized stay is not "undocumented"...the NOA1 is proof of authorized stay while AOS is pending, and they are not deportable.

[Bzlibem 111]

Just now, geowrian said:

B would not apply here. Spouse of a USC is an immediate relative category, which does not allow derivatives. Option a would be appropriate.

Not quite. He will be out of status once his I-94 expires (90 days after entry max), but he will have authorized stay once AOS is filed. Authorized stay is not "undocumented"...the NOA1 is proof of authorized stay while AOS is pending, and they are not deportable.

Well then maybe I'm wrong. My friend did AOS successfully with b checked. 

And about the status.. maybe the details are different but meaning is the same 😁

[geowrian 22,337]

Just now, Bzlibem said:

Well then maybe I'm wrong. My friend did AOS successfully with b checked. 

And about the status.. maybe the details are different but meaning is the same 😁

I don't know his/her circumstances. Or if they just ignored what was on the form since it was clear what was intended (seeing as it was presumably filed concurrently with an I-130 if they also did AOS via a USC spouse).

Close, yes. Normally when you hear "undocumented", you think of somebody not in the US legally (overstay, EWI, etc.). But I know what you mean!

[Bzlibem 111]

Yep she filled concurrently via USC  it's such a mess in the USCIS that I wouldn't be surprised if they just missed or ignored it  

[FrankSinatra 14]

So as status I should write "WVP" and the correct option is  a) ?

[Hypnos 6,576]

Yes. 

[FrankSinatra 14]

But if its the a) option, it says I have to attach a copy of a  visa petition filed with this application tthat gives me "an immediately available visa number, if approved", but I havent applied for a visa, or I havent had no visa since I came on the vwp, so Im kind of confused when it comes to choose this option 

[geowrian 22,337]

1 minute ago, FrankSinatra said:

But if its the a) option, it says I have to attach a copy of a  visa petition filed with this application tthat gives me "an immediately available visa number, if approved", but I havent applied for a visa, or I havent had no visa since I came on the vwp, so Im kind of confused when it comes to choose this option 

Visa number...not actual visa. Filing the I-130 concurrently satisfies the requirement as the spouse of a USC.

[FrankSinatra 14]

I see, so option a) it is and wvp status then, thank you so much guys