Questions regarding my wife's adjustment of status from a B1/B2 tourist visa

[JFH 12,190]

8 hours ago, jaxe said:

So if my wife gets detained for whatever reason prior to USCIS receiving the packet, can she get deported and visa cancelled? what can happen? we don't want to break laws.. that border patrol agent we saw right now scared the ####### out of us saying she'll be here illegally and that she needs to leave prior to. 

 

If we send the I-539 next week, do you know approx. how long it takes for the USCIS to confirm I-485 as received? Will it matter if she's been here for weeks with no status?

 

Thank you, I really appreciate the help. Sorry.. i'm freaking out. 

The border guard told you she would be out of status/illegal in the time between her I-94 expiring and USCIS issuing a receipt for the AOS package and that she should leave because that’s his job. He has to show respect for the law. 
 

She will be out of status. In reality she is extremely unlikely to be removed. There are much more pressing cases on ICE’s radar than a law-abiding wife of a USC who filed her AOS paperwork just a few days before the I-94 expired during a national emergency. They are more interested in people who have overstayed for years, people who have broken the law here, etc. 

Edited May 8, 2020 by JFH

[aznhouston 130]

Overstaying is not illegal. If you are a US citizen, you can file for adjustment of status with an expired I-94. But do it as soon as possible.

However, the hard part is to prove the relationship is bona fide. People can't just fall in love and get married in one or two weeks. You need solid evidence to prove the legitimate of this marriage.

[geowrian 22,337]

8 hours ago, hoangthaihuy said:

Overstaying is not illegal.

No, it is very clearly illegal. It's just not a bar to AOS in this case. There are certainly cases where the spouse of a USC have been put into detention and even removal proceedings because they did not file. They have also received 3/10 year bars due to overstay.

 

That said, it is very uncommon in such a short period of time to get detained, and with ICE's current priorities due to the pandemic, they are not focused on non-violent offenders.

The focus should be on filing ASAP. Try to file before the I-94 expires. It would be against the TOS to advise somebody to overstay. Just get the paperwork sent as soon as you can send a complete packet. You'll be fine.

[Joe Minero 4]

21 hours ago, jaxe said:

So if my wife gets detained for whatever reason prior to USCIS receiving the packet, can she get deported and visa cancelled? what can happen? we don't want to break laws.. that border patrol agent we saw right now scared the ####### out of us saying she'll be here illegally and that she needs to leave prior to. 

 

If we send the I-539 next week, do you know approx. how long it takes for the USCIS to confirm I-485 as received? Will it matter if she's been here for weeks with no status?

 

Thank you, I really appreciate the help. Sorry.. i'm freaking out. 

You don't need an i-539 if you are trying for AOS.    Just in the packet that has been recommended to you.    Unfortunately it will take an agonizing 3-4 weeks to receive the NOA on the i-485.   I'm not sure if you actually have to have the NOA in hand to be in the "green card application pending" category,  but that is a legal status so the I-94 becomes moot at that point.   

[Joe Minero 4]

Question to the experts on this topic.   Wouldn't he be better off sending the packet asap even if a few documents are missing.    They will review and send an RFE for anything missing and in the mean time getting his NOA faster is super urgent.   Why wait for that last missing doc to send in this situation?

[geowrian 22,337]

2 minutes ago, Joe Minero said:

Question to the experts on this topic.   Wouldn't he be better off sending the packet asap even if a few documents are missing.    They will review and send an RFE for anything missing and in the mean time getting his NOA faster is super urgent.   Why wait for that last missing doc to send in this situation?

I would not suggest sending an incomplete packet. Per a USCIS memo from ~2018, they may treat any such submission as a "placeholder" filing and outright deny it instead of sending an RFE. USCIS implemented this to avoid people submitting packets to get in line with the expectation to provide documents via an RFE later.

[Lil bear 4,214]

5 minutes ago, Joe Minero said:

Question to the experts on this topic.   Wouldn't he be better off sending the packet asap even if a few documents are missing.    They will review and send an RFE for anything missing and in the mean time getting his NOA faster is super urgent.   Why wait for that last missing doc to send in this situation?

There has been an increasing trend recently in this type of action resulting in immediate denial of the AOS application without an RFE being issued. This is designed to stop “placeholder”’applications which are used to try to get up the pile faster. Not worth  the risk. Costs money and time and places the applicant in a non legal stay status while a second application is being filed 

Edited May 9, 2020 by Lil bear

[Joe Minero 4]

Just now, geowrian said:

I would not suggest sending an incomplete packet. Per a USCIS memo from ~2018, they may treat any such submission as a "placeholder" filing and outright deny it instead of sending an RFE. USCIS implemented this to avoid people submitting packets to get in line with the expectation to provide documents via an RFE later.

Thank you, I have received some excellent advice on this site.  

[Joe Minero 4]

2 minutes ago, Lil bear said:

There has been an increasing trend recently in this type of action resulting in immediate denial of the AOS application without an RFE being issued. This is designed to stop “placeholder”’applications which are used to try to get up the pile faster. Not withhold the risk. Costs money and time and places the applicant in a non legal stay status while a second application is being filed 

Thanks, both you and Geowrian have provide excellent guidance that would not have occurred to me.  

[HRQX 4,145]

48 minutes ago, geowrian said:

It would be against the TOS to advise somebody to overstay.

But for OP's wife the I-94 expires within ~53 hours:

21 hours ago, jaxe said:

and her I-94 expires this Sunday.

So mentioning VJ's TOS in this thread is a moot point; USCIS considers filing date as when the lockbox receives it.

[jaxe 1]

We've sent the papers but not sure the USCIS will receive so fast..

 

Anyways, so once the USCIS receives it, the I-94 doesn't matter anymore, right? What happens then, if for any reason the USCIS rejects the application for whatever reason- what is the spouse supposed to do? Leave the country ASAP? 

[jaxe 1]

Also, is there then any punishment for the spouse if the AOS application gets cancelled?

[Sinead91 249]

7 hours ago, jaxe said:

We've sent the papers but not sure the USCIS will receive so fast..

 

Anyways, so once the USCIS receives it, the I-94 doesn't matter anymore, right? What happens then, if for any reason the USCIS rejects the application for whatever reason- what is the spouse supposed to do? Leave the country ASAP? 

Lots of people have recently had their case denied because of errors in their documents and filing (particularly i944 it seems). USCIS sends it to you, and you simply file again. 

[geowrian 22,337]

Once received (even before they process it), that is when the period of authorized stay begins. Although it must be a proper filing - meaning if USCIS rejects it, it's it was never actually filed.

If you had to refile, you would just fix whatever errors were on the application packet and file again. The overstay is not a bar for AOS in your circumstances.

 

I wouldn't worry about "punishments" at this point in time. Focus on just getting a proper filing through (I know you already filed, but just reiterating this in the event it were to be rejected).

[aapl 1]

29 minutes ago, geowrian said:

Once received (even before they process it), that is when the period of authorized stay begins. Although it must be a proper filing - meaning if USCIS rejects it, it's it was never actually filed.

If you had to refile, you would just fix whatever errors were on the application packet and file again. The overstay is not a bar for AOS in your circumstances.

 

I wouldn't worry about "punishments" at this point in time. Focus on just getting a proper filing through (I know you already filed, but just reiterating this in the event it were to be rejected).

So if they need it to be refiled and need more info, the spouse applying for AOS is still protected via the NOA1?

 

and if for any reason the USCIS rejects the application, what then happens to the spouse applying for AOS (or what do they have to do?). Is the spouse now punished for having stayed past i-94 and is now considered unprotected?

 

how often does the USCIS flat out reject applications vs ask for more documents/modifications?

 

thanks

 

 

Edited May 9, 2020 by aapl