Is filing AOS thru I-485 possible if my wife is currently overstaying her visa?

[Dory 8]

Info:

• I am a US citizen married to a non-citizen w/ no dependents.
• She came in legally on a student visa and has overstayed her OPT visa by ~1 month.
• I have already filed an I-130 petition online. 
• I am wanting to mail in an I-485 package ASAP.
• After discussing the situation with the USCIS helpline (as a hypothetical...) they said that to file for AOS you need to be in the country with a currently valid status and that she would need to leave the country in order to apply for AOS.

 

Numerous online resources have explained to us that it is fine to file AOS for a spouse while overstaying a valid visa. Is this the case? Has something changed?

 

Do we need to file BOTH I-130 and I-485 at the same time to do so?

 

I'd like to know with as much certainty as possible, especially since the I-485 filing fee is so massive! 

 

Thank you for any help you can give.

Edited June 29, 2020 by zwrouse

[igoyougoduke 1,656]

She can do AOS. No issues

[Dory 8]

4 minutes ago, James120383 said:

She can do AOS. No issues

Thanks James,

 

So I guess USCIS customer service is just wrong and/or misleading then -- that is pretty frustrating.

 

Just one follow-up: do you know, given our current situation, if it matters if we submit an I-130 and then afterwards (in a separate package) file an I-485, or is it necessary to file both of them simultaneously. I know this may seem like a very specific question but some online resources made this question a bit ambiguous to us and we just want to be as certain as possible.

 

Thanks so much again.

Edited June 29, 2020 by zwrouse

[igoyougoduke 1,656]

2 minutes ago, zwrouse said:

Thanks James,

 

So I guess USCIS customer service is just wrong and/or misleading then -- that is pretty frustrating.

 

Just one follow-up: do you know, given our current situation, if it matters if we submit an I-130 and then afterwards (in a separate package) file an I-485, or is it necessary to file both of them simultaneously. I know this may seem like a very specific question but some online resources made this question a bit ambiguous to us and we just want to be as certain as possible.

 

Thanks so much again.

you dont have to file them concurrently. you can file 485 after you receive i-130 receipt of file them together. It all depends on your circumstances and $$$ 

Edited June 29, 2020 by James120383

[Dory 8]

Just now, James120383 said:

you dont have to file them concurrently. you can file 485 after you receive i-130 receipt. 

Hello again James, 

 

Thank you for your help!

[wagecuck3 31]

26 minutes ago, zwrouse said:

• She came in legally on a student visa and has overstayed her OPT visa by ~1 month.

Are you even sure that she has overstayed? There is a 60 day grace period at the end of the OPT period. If she is within that grace period then she has not overstayed.

 

Anyway, as someone else already pointed out, a person who has overstayed their lawful admission or parole is still eligible for AOS as an immediate relative of a US citizen.

 

1 minute ago, zwrouse said:

Just one follow-up: do you know, given our current situation, if it matters if we submit an I-130 and then afterwards (in a separate package) file an I-485, or is it necessary to file both of them simultaneously. I know this may seem like a very specific question but some online resources made this question a bit ambiguous to us and we just want to be as certain as possible.

She can submit the I-485 separately, but you need the I-130 receipt number in order to do so. Ideally she should try to file the I-485 before her lawful admission actually runs out, although it's not strictly required. When a person files an I-485 non-frivolously, they are allowed to remain in the US while waiting for it to be processed. Filing the I-130 alone does not offer this protection.

[igoyougoduke 1,656]

It does not matter if she overstay's. its all waived 

[HRQX 4,145]

44 minutes ago, zwrouse said:

I have already filed an I-130 petition online.

Do you have the I-130 receipt notice? If so, your spouse can generally submit the following three packets in the same envelope:

• I-485 with copy of I-130 receipt notice, I-864 and supporting documents, I-944 and 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.

On the I-485 packet, I-485 payment method (check, money order, or Form G-1450) must be the very first item of this packet.

I-765 and I-131 are free and highly recommended: "If you properly file Form I-485 and pay the required fees, you may file Form I-765 and Form I-131 without paying additional fees. You may file these forms together, or if you choose to file Form I-765 or Form I-131 separately, you must also submit a copy of your I-797C, Notice of Action, receipt as evidence that you filed and paid for Form I-485." https://www.uscis.gov/system/files_force/files/form/i-485instr-pc.pdf Page 18

Edited June 29, 2020 by HRQX

[Cyberfx1024 7,980]

42 minutes ago, zwrouse said:

Info:

• I am a US citizen married to a non-citizen w/ no dependents.
• She came in legally on a student visa and has overstayed her OPT visa by ~1 month.
• I have already filed an I-130 petition online. 
• I am wanting to mail in an I-485 package ASAP.
• After discussing the situation with the USCIS helpline (as a hypothetical...) they said that to file for AOS you need to be in the country with a currently valid status and that she would need to leave the country in order to apply for AOS.

 

Numerous online resources have explained to us that it is fine to file AOS for a spouse while overstaying a valid visa. Is this the case? Has something changed?

 

Do we need to file BOTH I-130 and I-485 at the same time to do so?

 

I'd like to know with as much certainty as possible, especially since the I-485 filing fee is so massive! 

 

Thank you for any help you can give.

You can file for her without issues at all. Also if I were you I would avoid the Reddit Immigration sub

[Dory 8]

8 minutes ago, HRQX said:

Do you have the I-130 receipt notice?

Yes I believe so. But just to be sure, I took a screen capture of what I believe my "I-130 receipt notice" is and obscured all identifying info and attached it here. The entry with the arrow pointing to it is the I-130 Receipt # which I verify on the USCIS website to be the correct # associated with my online I-130 form. 

 

This is a valid "I-130 receipt notice" yes? I don't need to wait for some other document to be mailed to me?

 

Edited June 29, 2020 by zwrouse

[Quarknase 1,072]

1 minute ago, zwrouse said:

Yes I believe so. But just to be sure, I took a screen capture of what I believe my "I-130 receipt notice" is and obscured all identifying info and attached it here. The entry with the arrow pointing to it is the I-130 Receipt # which I verify on the USCIS website to be the correct # associated with my account. 

 

This is a valid "I-130 receipt notice" yes? I don't need to wait for some other document to be mailed to me?

 

No, this is your payment confirmation - if you filed the I-130 online, check under “documents” tab and you might see a receipt notice PDF.

Alternatively just wait until it gets sent you you via mail, which usually happens within 2-4 weeks (sometimes a bit slower).

[HRQX 4,145]

5 minutes ago, zwrouse said:

This is a valid "I-130 receipt notice" yes?

No.

 

Log-in with your USCIS account. Then look for USCIS notices:

Edited June 29, 2020 by HRQX

[Dory 8]

1 minute ago, Quarknase said:

No, this is your payment confirmation - if you filed the I-130 online, check under “documents” tab and you might see a receipt notice PDF.

Alternatively just wait until it gets sent you you via mail, which usually happens within 2-4 weeks (sometimes a bit slower).

OK, I see. I will put off filing my I-485 until I receive an online I-130 receipt notice on my USCIS page. 

 

Thank you for your help.

[Dory 8]

2 minutes ago, HRQX said:

No.

 

Log-in with your USCIS account. Then look for USCIS notices:

Ok, I have checked there on my USCIS account, but I unfortunately have not received it yet. Do you know about how long it takes to get an I-130 receipt notice after online filing? 

 

Thanks.

[Dory 8]

13 minutes ago, Quarknase said:

No, this is your payment confirmation - if you filed the I-130 online, check under “documents” tab and you might see a receipt notice PDF.

Alternatively just wait until it gets sent you you via mail, which usually happens within 2-4 weeks (sometimes a bit slower).

By any chance would you know about how long it takes for the electronic version of this document to show up on one's USCIS page?

 

Thanks again.