My wife’s adjustment Visa has been denied

[Aznseanyu 0]

My wife and I has applied change of status but got denied. Since we’re hoping she could safely change her status thus, over stayed her travel visa. Unfortunately, her Japanese passport is about to expires on January 2020.  Therefor, we are not sure if filed for re-appeal will expired her Japanese passport. If she’s to return to Japan to renew her passport after denial of status change will she be barred from entering the USA?

Edited October 31, 2019 by Aznseanyu

[designguy 1,179]

What was the reason for the denial?

[Aznseanyu 0]

1 minute ago, designguy said:

What was the reason for the denial?

Lack of proof for kinship I think 

[payxibka 10,045]

1 minute ago, Aznseanyu said:

Lack of proof for kinship I think 

She cannot renew her passport from inside the USA via the Japanese embassy or consulate?

[Boiler 45,517]

Not every Consulate will reissue a passport if you are not here legally. They might only issue a travel document to get you home.

[designguy 1,179]

5 minutes ago, Aznseanyu said:

Lack of proof for kinship I think 

Do you mean lack of proof of a bonafide marriage? What evidence did you present? With what are you appealing? Keep in mind the following: 

 

Quote

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-3 

If USCIS denies the EOS or COS application, then the alien is generally considered to be in unlawful immigration status as of the expiration of the alien’s current nonimmigrant status and likewise on the date the adjustment application is filed.

She will be accruing unlawful presence and could face a future bar to the united states 

[Aznseanyu 0]

24 minutes ago, payxibka said:

She cannot renew her passport from inside the USA via the Japanese embassy or consulate?

She’s needs an issue visa to renew her passport which she does not have 

[Boiler 45,517]

On what basis would she be looking to re enter the US?

[carmel34 3,633]

2 hours ago, Aznseanyu said:

She’s needs an issue visa to renew her passport which she does not have 

The best path forward is for her to return to Japan, you file an I-130 petition for a spousal visa, and she waits in Japan until the visa is approved.  In the year or longer that it will take, gather more evidence of a bona fide marriage relationship and she can take it to the visa interview abroad.  If she chooses to stay in the US without any legal status, she is subject to deportation and will accrue unlawful presence in the US which will only makes things more difficult for her and you may have to live in Japan if you want to be together.  That's always an option anyway, Japan is a beautiful country.  Good luck!

[aaron2020 11,651]

4 hours ago, Aznseanyu said:

My wife and I has applied change of status but got denied. Since we’re hoping she could safely change her status thus, over stayed her travel visa. Unfortunately, her Japanese passport is about to expires on January 2020.  Therefor, we are not sure if filed for re-appeal will expired her Japanese passport. If she’s to return to Japan to renew her passport after denial of status change will she be barred from entering the USA?

If she returns to Japan, she will need to wait for a spousal immigrant visa to return to the US.  That's going to take 12-18 months.

 

The US is not going to let her return on a visitor visa or the visa waiver program when she has already demonstrated her immigrant intent.  

 

Go get a lawyer who can help you with refiling the AOS and help you with proving a bona fide relationship.  You can't afford to screw up a second time.  

[HRQX 4,145]

10 hours ago, Aznseanyu said:

My wife and I has applied change of status but got denied.

Just to confirm: she submitted a I-485, and not a futile I-539; correct?

 

While the I-485 was pending she did't accrue unlawful presence: "DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:" "For aliens who have properly filed an application for adjustment of status to that of a lawful permanent resident (LPR), the entire period of the pendency of the application, even if the application is subsequently denied or abandoned, provided the alien (unless seeking to adjust status under NACARA or HRIFA) did not file for adjustment "defensively" (i.e., after deportation proceedings had already been initiated)" https://fam.state.gov/FAM/09FAM/09FAM030211.html

[Lemonslice 4,841]

She does not need a passport to file again. No?

[Minori 111]

I am a Japanese woman. I just wonder how and when you got married her. She had tourist visa or ESTA?  If you got married while she stayed with ESTA, she should have been back to Japan and applied for spouse visa to live in the US after you got married. 
She must go back to Japan ASAP before get deported. If she gets NTA and deported, she won’t be able to come back to the US for years at least. She needs to go back to Japan and apply for spouse visa. You will be able to visit her while she’s in Japan. Good luck. 

[aaron2020 11,651]

3 hours ago, Minori said:

I am a Japanese woman. I just wonder how and when you got married her. She had tourist visa or ESTA?  If you got married while she stayed with ESTA, she should have been back to Japan and applied for spouse visa to live in the US after you got married. 
She must go back to Japan ASAP before get deported. If she gets NTA and deported, she won’t be able to come back to the US for years at least. She needs to go back to Japan and apply for spouse visa. You will be able to visit her while she’s in Japan. Good luck. 

WRONG!

 

She is already in the US and can file to adjust her status.  SHE DOES NOT NEED TO GO BACK TO JAPAN.  SHE NEEDS A LAWYER WHO KNOWS HOW TO FILE CORRECTLY.  

[geowrian 22,337]

There is no requirement to return to Japan and they can refile. Although 1 thing I would note is that if she came via the VWP and was denied due to lack of showing a bona fide relationship, removal is possible and there is no basis to challenge it as a VWP traveler.* Refiling the I-485 doesn't actually provide a basis for preventing removal in this case. USCIS policy is issue an NTA shortly after a refusal of an overstay now.

*Exceptions apply to those within the jurisdiction of the 9th circuit

https://www.uscis.gov/sites/default/files/files/nativedocuments/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf

 

Personally, I would still refile - presenting a stronger case this time.