Extension of Stay for Covid (versus pursuing AOS)

[martha783 12]

2 minutes ago, mushroomspore said:

You are correct about him abandoning I-485 IF he leaves BEFORE AP is approved. I don't have experience with B1/B2 but he can't leave and enter with it after filing AoS. Once you file AoS, the applicant is granted a special status by the government. I believe it's called "authorized stay" or something similar. This is why we need the AP. We have to be "paroled" back into the country if we leave during AoS. Once you file AoS, you declare immigrant intent and you can't enter on a non-immigrant status when you've declared immigrant intent. 

 

If you start AoS and then abandon it, I don't think he will be able to get another B1/B2. Once again it goes back to declaring immigrant intent by filing AoS. The government will see he's declared it once before and didn't finish it. Uncertainty about a person's intentions is why denials happen. Basically, whichever you decide to go about this, you'll have to really commit to it because there's no erasing of records or restarting with a clean slate. I would suggest considering AoS. Travel to Peru is simply not happening for the rest of the year. By Jan, you'll be closer to getting the EAD/AP. He can start working and in about a year and some change, he'll be a permanent resident. Some rules still apply to him about not leaving the US for too long but if Peru is being this strict about its borders, it may take them a while to open back up anyways. We also do not know how Peru will treat people coming from America, even after COVID settles down. The world is very wary of us and rightfully so. Overall, it'd be more secure to get him permanent resident status. Visas are already tricky and they're only going to get trickier.

You've given me a lot to think about. I have also been considering the ''intent'' issue. An immigration attorney advised him that if he gets residency and then want to reside in Peru, he can voluntarily turn in his green card to get a visitor's visa.  I'm gathering that's not true if he abandoned in the process, it would be hard to improve a genuine change of intent. He's not your average B1/B2 applicant since his entire immediate family are USCits, but we don't want to jeopardize it unless there is a sure alternative. A primary goal in obtaining LPR status and eventually citizenship is to be sure our family won't be separated.

 

With everything so hard to predict, the commitment itself is scary (if an extension were approved, and that's a big if, we could always decide next year to pursue residency). 

[mushroomspore 3,044]

1 hour ago, martha783 said:

You've given me a lot to think about. I have also been considering the ''intent'' issue. An immigration attorney advised him that if he gets residency and then want to reside in Peru, he can voluntarily turn in his green card to get a visitor's visa.  I'm gathering that's not true if he abandoned in the process, it would be hard to improve a genuine change of intent. He's not your average B1/B2 applicant since his entire immediate family are USCits, but we don't want to jeopardize it unless there is a sure alternative. A primary goal in obtaining LPR status and eventually citizenship is to be sure our family won't be separated.

 

With everything so hard to predict, the commitment itself is scary (if an extension were approved, and that's a big if, we could always decide next year to pursue residency). 

Hm I have no idea what that attorney meant but you cannot "trade" statuses and visas like that.

 

The government is being nice about not counting unlawful presence right now so long as the right papers are filed. Spouses of US citizens are forgiven for overstay but for AoS approval only. It's best to simply not have it on your record with them if possible. 

 

Talking pure probability, this is also where AoS is the better option. I don't have statistics so I can't say how successful these extensions are right now. They do take a long time to process so by the time your husband's application is given a final decision, the global situation will have changed. At that point, the government may no longer feel the need to be so nice anymore. We just don't know. AoS takes a while but there's a 99.999% chance you will be approved without issues and the permanent resident status will provide employment authorization and less restrictions on his presence here. Betting everything on the B1/B2 is super risky. If that's gone, he would need to become a permanent resident through an IR1 visa anyway (and he'd have to go back home for some time) or find a different visa to enter with but non-family visas are definitely more difficult to obtain. You might as well just bite the bullet and do AoS to secure him as a permanent resident and not have to worry about his entries into the US anymore and he gets to stay in the US while AoS is pending.

Edited August 3, 2020 by mushroomspore

[SalishSea 17,829]

3 hours ago, mushroomspore said:

he gets to stay in the US while AoS is pending.

OP, just keep in mind that it will take at least 6 months for him to get AP, and if he leaves during that time, he won't be paroled back in.

[martha783 12]

So what I found researching to understand what he meant was voluntarily if you can surrender lpr at an embassy, explain your intention has changed, and apply for b1/b2. It makes sense to me they would know you didn’t intend to me a resident since you don’t have any other reason to voluntarily give it up. 

 

https://my.usembassy.gov/visas/immigrant-visas/green-card-abandonment/

 

5 hours ago, mushroomspore said:

Hm I have no idea what that attorney meant but you cannot "trade" statuses and visas like that.

 

 

[martha783 12]

2 hours ago, Jorgedig said:

OP, just keep in mind that it will take at least 6 months for him to get AP, and if he leaves during that time, he won't be paroled back in.

Right, so we’re stuck for sure until then. We left our home with 24 hours notice and have elderly family to attend to so we could end up asking for expedition on the ap but I realize that’s not guaranteed and could take months too. 

 

 

  

[SusieQQQ 11,586]

37 minutes ago, martha783 said:

So what I found researching to understand what he meant was voluntarily if you can surrender lpr at an embassy, explain your intention has changed, and apply for b1/b2. It makes sense to me they would know you didn’t intend to me a resident since you don’t have any other reason to voluntarily give it up. 

 

https://my.usembassy.gov/visas/immigrant-visas/green-card-abandonment/

 

You first need to get LPR status to surrender it...that’s going to be like a year or something.

[SalishSea 17,829]

37 minutes ago, martha783 said:

Right, so we’re stuck for sure until then. We left our home with 24 hours notice and have elderly family to attend to so we could end up asking for expedition on the ap but I realize that’s not guaranteed and could take months too. 

 

 

  

Yes, I really wouldn't count on that.  Especially since you know it may be an issue ahead of time (expedite is really more for unexpected, which this would not be).

 

Skirting around things can often cost time and money when it comes to US immigration.  

[Daisy.Chain 317]

I think it's safer to apply for AOS now that your circumstances have changed. Who knows how long the pandemic could continue? You might both need to work (esp with those elderly relatives), and end up residing in the US for a while. 

 

Your husband was able to be expatriated along with your family even though he's not a US citizen? I was not aware that they did that. I'm glad he can be with you and the family. Is your baby ok now?

[martha783 12]

19 minutes ago, Daisy.Chain said:

 

 

Your husband was able to be expatriated along with your family even though he's not a US citizen? I was not aware that they did that. I'm glad he can be with you and the family. Is your baby ok now?

You’re right. They don’t do Do that. As far as I know, he’s the only non-LPR/Cut evacuated from Peru. We had miraculous favor at the embassy and they granted him a b1/b2 renewal (his had just expired) and put us on the plane without a question. Our daughter is better but given the total unavailability ishealthcare in Peru right now, we don’t know when it will be safe to return once it becomes an option. 

[Sarah&Facundo 595]

Since you are already here for the forseeable future, why not just do AOS to get it overwith? Then he will have a 10-year green card since you have been married more than 2 years. He could become a citizen three years after that. Then you won't have to worry about any of this anymore. Unless, is there any pressing reason to HAVE TO go back to Peru when the border does reopen? 

And I totally understand what you're saying. My husband is Argentinian and Argentina has done the same thing with closing absolutely every border. And even when they announce they will reopen something, they often postpone it right before the deadline. Because of this, my husband has been accruing months towards what he needs to file citizenship (even though we don't necessarily want to live in the US in the future). It'll make things easier in the long run I suppose.

[mushroomspore 3,044]

9 hours ago, martha783 said:

So what I found researching to understand what he meant was voluntarily if you can surrender lpr at an embassy, explain your intention has changed, and apply for b1/b2. It makes sense to me they would know you didn’t intend to me a resident since you don’t have any other reason to voluntarily give it up. 

 

https://my.usembassy.gov/visas/immigrant-visas/green-card-abandonment/

 

Ooh I see. The problem with that scenario is that it'll be very difficult to get B1/B2 after giving up LPR. Once again, it has to do with intent. Expressing immigrant intent is basically a point-of-no-return. Once you express it, it's best to stick with it. If you decide to relinquish it, you'll (or rather, your husband will) most likely have to wait a long time before attempting entry again to help prove against any notions of lingering immigrant intent. 

[martha783 12]

2 hours ago, Sarah&Facundo said:

Since you are already here for the forseeable future, why not just do AOS to get it overwith? Then he will have a 10-year green card since you have been married more than 2 years. He could become a citizen three years after that. Then you won't have to worry about any of this anymore. Unless, is there any pressing reason to HAVE TO go back to Peru when the border does reopen? 

And I totally understand what you're saying. My husband is Argentinian and Argentina has done the same thing with closing absolutely every border. And even when they announce they will reopen something, they often postpone it right before the deadline. Because of this, my husband has been accruing months towards what he needs to file citizenship (even though we don't necessarily want to live in the US in the future). It'll make things easier in the long run I suppose.

Thanks! It's nice to hear from someone else in a similar situation. It feels like the default (obviously here because its an immigration forum but also in real life) is that everyone wants to live in the U.S. forever, and its so hard to understand why we aren't committing to that. The 'get it over with' is exactly why we're considering doing it now.

[mushroomspore 3,044]

7 minutes ago, martha783 said:

Thanks! It's nice to hear from someone else in a similar situation. It feels like the default (obviously here because its an immigration forum but also in real life) is that everyone wants to live in the U.S. forever, and its so hard to understand why we aren't committing to that. The 'get it over with' is exactly why we're considering doing it now.

Yes it's true a lot of people do want to live here forever. But even for those who don't, citizenship at least guarantees entry back into the country. So you guys don't have to stay here forever. It's only during his permanent residency that he needs to stay and ensure the residency requirements. But once he becomes a citizen, you guys can move back and you won't have to ever worry about his entries back into the US. He'll have to continue paying US taxes though, even if residing abroad.

[martha783 12]

49 minutes ago, mushroomspore said:

Yes it's true a lot of people do want to live here forever. But even for those who don't, citizenship at least guarantees entry back into the country. So you guys don't have to stay here forever. It's only during his permanent residency that he needs to stay and ensure the residency requirements. But once he becomes a citizen, you guys can move back and you won't have to ever worry about his entries back into the US. He'll have to continue paying US taxes though, even if residing abroad.

Yes, that's a factor. I've been a fiscal resident for years, despite only being physically present about 9 months a year, but adding him to the tax return does change it for sure. 

[mushroomspore 3,044]

27 minutes ago, martha783 said:

Yes, that's a factor. I've been a fiscal resident for years, despite only being physically present about 9 months a year, but adding him to the tax return does change it for sure. 

The taxes aren't really a big deal though. Just something to be aware of if you guys pursue AoS and citizenship.