Extend B2 visa while I-130 is Pending

[karenliao546 7]

My cousin who has a B2 visa is going to extend her stay due to the Covid 19 and China's travel policy. However, she has a pending  I-130 that her green card husband petitions for her. Will it cause any consequence for her F2b interview later? If she cannot get the result before her I-94 stay, will it cause her unlawful presence? 

 

 

thanks

 

Karen

[SusieQQQ 11,586]

I130 for LPR husband is F2A not F2B.

well there are a few aspects to consider.

note that she is in overstay (but not accumulating unlawful presence) from end of i94 until the extension is adjudicated (has been taking 4-6 months to process so she won’t know by time i94 expires). The overstay is cleared retroactively to end of original i94 if she is approved, but stays as overstay and gets her b visa cancelled if denied. Unlawful presence would start from denial date. It won’t affect the F2A immigrant visa, assuming she does not accrue enough unlawful presence to trigger a ban, but will mean she will almost certainly be unable to visit again before she gets her immigrant visa.

 

What is the China travel policy that prevents her returning home? Are they not repatriating nationals?

Edited May 7, 2020 by SusieQQQ

[karenliao546 7]

1 minute ago, SusieQQQ said:

I130 for LPR husband is F2A not F2B.

well there are a few aspects to consider.

note that she is in overstay (but not accumulating unlawful presence) from end of i94 until the extension is adjudicated (has been taking 4-6 months to do process). The overstay is cleared retroactively to end of original i94 if she is approved, but stays as overstay and gets her visa cancelled if denied. Unlawful presence would start from denial date. It won’t affect the F2A immigrant visa, but will mean she will almost certainly be unable to visit again before she gets her immigrant visa.

 

What is the China travel policy that prevents her returning home? Are they not repatriating nationals?

She has two USC children and China suspended the entry of most foreign nationals since 03/28/2020.  any Chinese citizen entering China now needs to quarantine 14 days from departure location and another 14 days for the local residence.  She has to bring her children back to China if she needs go back to China since there is no way for her husband to take care two children in the United States.

[SusieQQQ 11,586]

1 hour ago, karenliao546 said:

She has two USC children and China suspended the entry of most foreign nationals since 03/28/2020.  any Chinese citizen entering China now needs to quarantine 14 days from departure location and another 14 days for the local residence.  She has to bring her children back to China if she needs go back to China since there is no way for her husband to take care two children in the United States.

Ok so it’s not that she can’t physically get back but that she doesn’t want to quarantine and...her husband can’t take care of the children?  She has to explain her reasons for asking for the extension. 

Edited May 7, 2020 by SusieQQQ

[Quarknase 1,072]

Would she not be able to file Adjustment of Status and wait within the US until the I-485 (or I-131 for travel) got approved? The Priority date for F2A is current so they could file right away of she's able to stay here for a while from what I see.

[karenliao546 7]

12 hours ago, SusieQQQ said:

Ok so it’s not that she can’t physically get back but that she doesn’t want to quarantine and...her husband can’t take care of the children?  She has to explain her reasons for asking for the extension. 

thanks

[karenliao546 7]

9 hours ago, Quarknase said:

Would she not be able to file Adjustment of Status and wait within the US until the I-485 (or I-131 for travel) got approved? The Priority date for F2A is current so they could file right away of she's able to stay here for a while from what I see.

I am not sure she can adjust her status in the United States or not. As far as I know, she needs to have a legal status like F1 visa to adjust her status here while she is waiting for her green card

[Quarknase 1,072]

22 minutes ago, karenliao546 said:

I am not sure she can adjust her status in the United States or not. As far as I know, she needs to have a legal status like F1 visa to adjust her status here while she is waiting for her green card

Hm. When filing the I-485 the beneficiary is granted authorized stay until a decision has been made. With a B2 visa they entered with inspection. What you are getting at is, that usually spouses of greencard holders need to wait for their priority date to become current - but at the moment the PD is current so this is a situation that's fairly new and allows for a different approach (e.g. Adjustment of Status from within the country, even if here in a visitor visa).

@geowrian can you help and confirm if this is correct?  I am 90% sure but don't want to steer the OP in the wrong direction

[geowrian 22,337]

1 hour ago, Quarknase said:

Hm. When filing the I-485 the beneficiary is granted authorized stay until a decision has been made. With a B2 visa they entered with inspection. What you are getting at is, that usually spouses of greencard holders need to wait for their priority date to become current - but at the moment the PD is current so this is a situation that's fairly new and allows for a different approach (e.g. Adjustment of Status from within the country, even if here in a visitor visa).

@geowrian can you help and confirm if this is correct?  I am 90% sure but don't want to steer the OP in the wrong direction

It's correct. She must be in (and have maintained) any legal status and the PD must be current. It appears both of those have been met. If so, the I-485 can be filed concurrently (meaning even with an already-pending I-130 here). Just be sure to include a copy of the I-130's NOA1 in the packet.

[karenliao546 7]

9 minutes ago, geowrian said:

It's correct. She must be in (and have maintained) any legal status and the PD must be current. It appears both of those have been met. If so, the I-485 can be filed concurrently (meaning even with an already-pending I-130 here). Just be sure to include a copy of the I-130's NOA1 in the packet.

thanks. Her I-94 is expired on 06/27/2020, so it seems she can adjust here, but she does not know any English and does not have credit score and education background. With the current requirement of Form I-944, We thought it would be easier to get her green card via US consulate. Am I right?

 really thanks

Edited May 7, 2020 by karenliao546

[geowrian 22,337]

7 minutes ago, karenliao546 said:

thanks. Her I-94 is expired on 06/27/2020, so it seems she can adjust here, but she does not know any English and does not have credit score and education background. With the current requirement of Form I-944, We thought it would be easier to get her green card via US consulate. Am I right?

 really thanks

In theory, it should be the same either way.

In practice, I would almost always prefer to go through USCIS in the country than a consulate abroad. You have virtually no way to challenge their decision...CO visa decisions are subject to the doctrine of consular non-reviewability. If she were to have an issue with AOS, there would be legal paths to challenge it instead.

Note that the DS-5540 has most of the same questions as the I-944 (language, education, etc.), and the public charge rule for DOS (visas) was also updated to be very similar to that of DHS (USCIS). The biggest differences are for things like credit reports, which is fairly simple to answer - IMHO - if you don't have one (N/A).

 

I'm not saying she should or shouldn't do AOS vs consular processing. That's a personal decision. But both are valid options here. There are drawbacks to AOS, namely in terms of not being able to work or travel abroad (and return) for likely the better half of a year or longer (EAD + AP timelines). Some people have stuff they need to return back to in that timeframe.

But if you know and accept those drawbacks, I don't see any reason not to do AOS.

Edited May 7, 2020 by geowrian

[karenliao546 7]

4 minutes ago, geowrian said:

In theory, it should be the same either way.

In practice, I would almost always prefer to go through USCIS in the country than a consulate abroad. You have virtually no way to challenge their decision...CO visa decisions are subject to the doctrine of consular non-reviewability. If she were to have an issue with AOS, there would be legal paths to challenge it instead.

Note that the DS-5540 has most of the same questions as the I-944 (language, education, etc.), and the public charge rule for DOS (visas) was also updated to be very similar to that of DHS (USCIS). The biggest differences are for things like credit reports, which is fairly simple to answer - IMHO - if you don't have one (N/A).

 

I'm not saying she should or shouldn't do AOS vs consular processing. That's a personal decision. But both are valid options here. There are drawbacks to AOS, namely in terms of not being able to work or travel abroad (and return) for likely the better half of a year or longer (EAD + AP timelines). Some people have stuff they need to return back to in that timeframe.

But if you know and accept those drawbacks, I don't see any reason not to do AOS.

thanks for your efforts to answer my questions. thanks!!!

[HRQX 4,145]

20 hours ago, karenliao546 said:

she has a pending  I-130 that her green card husband petitions for her.

She's eligible to file the following together before 06/27/2020:

• I-485 with a copy of the I-130 receipt notice, I-864 with supporting documents, I-944 with supporting documents, electronic I-94 copy, filing fees, etc.;
• I-765 with electronic I-94 copy, etc.; and
• I-131 with electronic I-94 copy, etc.

[retheem 564]

28 minutes ago, HRQX said:

She's eligible to file the following together before 06/27/2020:

• I-485 with a copy of the I-130 receipt notice, I-864 with supporting documents, I-944 with supporting documents, electronic I-94 copy, filing fees, etc.;
• I-765 with electronic I-94 copy, etc.; and
• I-131 with electronic I-94 copy, etc.

Follow this advice; it's accurate and to the point. There is no need for consular processing, as you can see F2A visas are not being given currently and could be banned indefinitely. Since you are in the US and legal, you can file for AOS before expiry of your B1/B2 visa. Also, i will advice you not to travel outside of the country until you have your green card. An advance parole I-131 is good on paper, but it just says you can be excused to come back to the US. Not that CBP will necessarily allow you in, and can still deny you entry at a POE. Think smart and secure yourself here.

Edited May 8, 2020 by retheem

[geowrian 22,337]

3 minutes ago, retheem said:

There is no need for consular processing

True. AOS is an option. It may or may not be the best option, depending on one's circumstances. Having choices is good.

 

2 minutes ago, retheem said:

An advance parole I-131 is good on paper, but it just says you can be excused to come back to the US. Not that CBP will necessarily allow you in, and can still deny you entry at a POE.

This applies for any visa, and even a green card. Although the risk of being denied varies based on your basis for entry, denied entry with a valid AP document is exceedingly rare.