Please Advice if Adjustment of Status required or not

[zaback21 29]

Hi,

 

My cousin who is a Permanent Resident of USA (for almost 1.5 years+ now from F4 Family immigration through my aunt and is also continuously living in there) is planning to get married to a guy who is on a student visa also living in USA. His student visa will last almost 2 more years. So, by then the I-130 for F2A will be approved and he can become PR before his student visa expires or in the worst case scenario he may leave USA for a few months and then can enter USA as a PR which is also fine by him.

 

Now the question is: is AOS (I-485) important to apply and if so what are the benefit and drawback of it? Can you please kindly advice if applying for AOS along with I-130 will complicate the situation or not or it is quite a normal process? 

 

Thanks!

Edited July 4, 2018 by zaback21

[arken 4,197]

I485 cannot be filed at this time. For now just i130. Once it gets approved and when his PD becomes current, then he can file i485 provided he is in the US in valid status till that time. His unexpired student visa doesn’t mean he is in valid status. His i-20 and his continuous study defines his valid status. If he cannot be in legal status by the time his PD becomes current, he will need to leave US and go through consular visa processing to get the immigrant visa later on.

 

[zaback21 29]

29 minutes ago, arken said:

I485 cannot be filed at this time. For now just i130. Once it gets approved and when his PD becomes current, then he can file i485 provided he is in the US in valid status till that time. His unexpired student visa doesn’t mean he is in valid status. His i-20 and his continuous study defines his valid status. If he cannot be in legal status by the time his PD becomes current, he will need to leave US and go through consular visa processing to get the immigrant visa later on.

 

Thanks. So basically AOS can not be applied at least 2 years before PD becoming current but by then he will already have his immigration interview and may have received his PR. So, no point of applying for AOS then. So, I am not getting why people apply for AOS then. Am I missing something?

[Roel 7,192]

If he file i485 - he can stay in the US.

 

If he only files i130 - he has to leave US and apply for spouse visa in Embassy abroad.

[zaback21 29]

2 minutes ago, Roel said:

If he file i485 - he can stay in the US.

 

If he only files i130 - he has to leave US and apply for spouse visa in Embassy abroad.

Ok, so only I-130: If he doesn't have a valid visa 2 years later when PD becomes current, he will have to leave US and get the processing done overseas. If he has more than 2 years valid visa in US, then I presume he can have his interview in USA and not have to leave US and once his Green card is approved, he just switches from Student Visa to Immigrant Visa.

 

I-130 + I-485: Can this be applied together while submitting petition or not? If it can be, then he does not have to leave till a decision is made. Is this correct? If not what other ways can he stay in USA?

[zaback21 29]

8 minutes ago, Dee elle said:

Adjustment of status requires a visa to be immediately available . F2 is not a category which has this. 

Ok thanks. So, just curious how does people who come in other visa, marries a PR and stays. What visa are they applying for?

[Roel 7,192]

Just now, zaback21 said:

Ok thanks. So, just curious how does people who come in other visa, marries a PR and stays. What visa are they applying for?

So the point is that people married to LPR should await for their visas abroad - because during the waiting game the person cannot gain any illegal presence - unless they can sneak through different loopholes and somehow keep their legal status for 2 years. Extending tourist visa, changing status to F1 visa... etc.

[zaback21 29]

2 minutes ago, Roel said:

So the point is that people married to LPR should await for their visas abroad - because during the waiting game the person cannot gain any illegal presence - unless they can sneak through different loopholes and somehow keep their legal status for 2 years. Extending tourist visa, changing status to F1 visa... etc.

Ok, so best course of action will be he continues his study for 2 years in USA and they wait till a PR is granted within/after 2 years. Thanks!

[aleful 1,905]

hi

 

as stated, he can't file concurrently right now. only the i130 and the i130A. if he is still legally here when the priority date is current, then he can file the i485 in 2 years or whatever the time it is taking

 

if he won't be able to have legal status by that time, then he will need to leave and go through consular processing and have the interview in his country

 

the i485 is only for people who have a visa available immediately

 

 

[zaback21 29]

1 minute ago, aleful said:

hi

 

as stated, he can't file concurrently right now. only the i130 and the i130A. if he is still legally here when the priority date is current, then he can file the i485 in 2 years or whatever the time it is taking

 

if he won't be able to have legal status by that time, then he will need to leave and go through consular processing and have the interview in his country

 

the i485 is only for people who have a visa available immediately

 

 

Ok thanks. That explains a lot!

[EM_Vandaveer 2,408]

14 hours ago, zaback21 said:

Ok thanks. So, just curious how does people who come in other visa, marries a PR and stays. What visa are they applying for?

This is something that happens when people marry USCs. Visas are immediately available so they can file I-485 concurrently with I-130.

That does not apply to those marrying LPRs.

[issea 43]

He can do AOS when his PD becomes current according to VB chart B - dates for filing. In August VB the cutoff date for F2A is Dec 1, 2017, meaning those who were petitioned before this cutoff (aprrox. 7 monthons ago) date can file 1-485, given that those beneficiaries are still in their legal stays at the time of filing. U don’t necessarily have to wait for the chart A’s PD - final action date, becomes current. 

 

IMO for your case, it is better to do AOS when the cutoff date in chart B is much sooner than the final action date (and for now it is the case). But applying for IV at a consulate/embassy generally speaking will be a priority if the chart B date is close to that in chart A, because consular processing takes considerably less time, albeit it also depends on the working efficacy in your local USCIS office compared to doing AOS.