Spontaneous Wedding with no K1

[RyanIndiana 0]

My then fiance came over to the states on her tourist visa just like any other time to visit me but this time I popped the question and we spontaneously married at the courthouse and got our official marriage license.  We just mailed in our Application for the I130 and we are now freaking out because we can't file the I485 yet because she needs to get her medical exam still.  Her exit date is Jan 28th and we are worried about her overstaying the esta/visa and getting in trouble even though we plan on filing the I485 as soon as possible.  Has anyone dealt with a situation like this before?  Also what happened if either the I130 or I485 gets rejected because of a bad form would she have to go back home then come back so we can refile?

[payxibka 10,047]

7 minutes ago, RyanIndiana said:

My then fiance came over to the states on her tourist visa just like any other time to visit me but this time I popped the question and we spontaneously married at the courthouse and got our official marriage license.  We just mailed in our Application for the I130 and we are now freaking out because we can't file the I485 yet because she needs to get her medical exam still.  Her exit date is Jan 28th and we are worried about her overstaying the esta/visa and getting in trouble even though we plan on filing the I485 as soon as possible.  Has anyone dealt with a situation like this before?  Also what happened if either the I130 or I485 gets rejected because of a bad form would she have to go back home then come back so we can refile?

Once you file the I-485 she can remain until a decision is rendered.  She must NOT leave until she receives AP or a decision on the GC.    If denied she will have to leave and you will need to get a visa for her to return

[TNJ17 1,329]

Find an authorized doctor and get the medical done. Then file for AOS as soon as you get the medical done. That’s all you need to do. She shouldn’t leave until a decision is made on AOS. She should apply for AP and EAD with your AOS application so she can travel freely and work before receiving greencard. Don’t wait. Gather all the evidence and mail stuff out. It’s taking longer and longer these days for USCIS to process AOS. 

[Marcelina 246]

9 minutes ago, payxibka said:

Once you file the I-485 she can remain until a decision is rendered.  She must NOT leave until she receives AP or a decision on the GC.    If denied she will have to leave and you will need to get a visa for her to return

 

4 minutes ago, TNJ17 said:

Find an authorized doctor and get the medical done. Then file for AOS as soon as you get the medical done. That’s all you need to do. She shouldn’t leave until a decision is made on AOS. She should apply for AP and EAD with your AOS application so she can travel freely and work before receiving greencard. Don’t wait. Gather all the evidence and mail stuff out. It’s taking longer and longer these days for USCIS to process AOS. 

OP said they just mailed I130, CR-1? Should they now file for AOS with CR-1 processing? If they are processing CR-1 she shouldnt overstay tourist visa then..

Edited January 11, 2018 by Marcelina

[payxibka 10,047]

Just now, Marcelina said:

 

OP said they just mailed I130, CR-1? Should they now file for AOS with CR-1 processing?

That's why the I-485 is needed.  OP's spouse is in country.  

[Marcelina 246]

Just now, payxibka said:

That's why the I-485 is needed.  OP's spouse is in country.  

Of course I get that part that they need AOS, but they should cancel I130 in between right?

[RyanIndiana 0]

Do you guys think it matters if we wait the 2 weeks on the I130 to make sure its accepted and not incorrect before we send in the I485?

[geowrian 22,338]

6 minutes ago, Marcelina said:

Of course I get that part that they need AOS, but they should cancel I130 in between right?

The I-485 is filed based on the pending I-130, so it should not be cancelled. It's still a concurrent filing.

[payxibka 10,047]

Should have submitted them together.  The I-130 petition will simply be logged if the fee payment was correct

[Marcelina 246]

Just now, geowrian said:

The I-485 is filed based on the pending I-130, so it should not be cancelled. It's still a concurrent filing.

Thanks for clarifying!

[TNJ17 1,329]

You missed a grand opportunity there. Because you got married spontaneously, you qualified to AOS without filing I130. But because you filed a petition for CR1, now she’s gonna have to leave the country before her allowed date on the i94, and stay in her home country while CR1 visa is processed which is currently taking 12-14 months. She can visit you, but because you have now filed a petition for an immigrant visa for her, she might have a hard time getting into the country if she can’t prove to the officer at POE that she’s not trying to bypass CR1 processing. 

[geowrian 22,338]

12 minutes ago, TNJ17 said:

You missed a grand opportunity there. Because you got married spontaneously, you qualified to AOS without filing I130. But because you filed a petition for CR1, now she’s gonna have to leave the country before her allowed date on the i94, and stay in her home country while CR1 visa is processed which is currently taking 12-14 months. She can visit you, but because you have now filed a petition for an immigrant visa for her, she might have a hard time getting into the country if she can’t prove to the officer at POE that she’s not trying to bypass CR1 processing. 

This is wrong.

The I-485 for a family-based immigration requires an underlying I-130 petition. You cannot file for AOS without also filing an I-130. Since an immigrant visa number is immediately available as the spouse of a USC, you can either file both the I-130 and I-485 at the same time, OR you can send the I-485 at any point after the I-130 (and include the I-130's NOA1 with the packet). Both circumstances fall under concurrent filing since both forms are adjudicated together.

There's no need to leave the US / go for a CR-1 visa. This is an option still, but AOS is still available up until they exit the US.

 

Edit: For reference, AOS from a K-1 uses the I-129F as the underlying petition instead of the I-130.

Edited January 11, 2018 by geowrian

[Ontarkie 14,493]

~~Moved to AOS from Work, Student and Tourist Visas, from K1 P&P - As the OP is in the process of starting the AOS.~~

[caliliving 606]

You are fine...overstay is forgiven when married to a usc...I mailed mine in 2 years later and had no issues!

Do not leave the country until she has her green card in hand! 

Send in the i485 and she will get a work permit in 4 months!

People get married every day and stay and aos...it's fine you won't have an issue but the sooner the better. And do not leave! 

[FluffyBalls 52]

9 hours ago, TNJ17 said:

Find an authorized doctor and get the medical done. Then file for AOS as soon as you get the medical done. That’s all you need to do. She shouldn’t leave until a decision is made on AOS. She should apply for AP and EAD with your AOS application so she can travel freely and work before receiving greencard. Don’t wait. Gather all the evidence and mail stuff out. It’s taking longer and longer these days for USCIS to process AOS. 

My lawyer mentioned holding off on the medical and bringing it to the interview instead. The time from AOS submission to interview is about one year at our service center, and with the medical being only valid for one year, some of her clients have had to redo the medical due to their interviews being scheduled 12+ months from when they first did the exam.