Currently on tourist visa to extend of adjust of status

[B-ann 1]

Hi everyone, 

 

This thread of mine might be asked before but I can’t find any related topic in my situation. So here’s my situation: 

 

I am currently in the US right now with my  US citizen husband(we got married in the Philippines) and our son(which is a US citizen) since March. Due to covid I am not able to go back home for now since our country is on lockdown. My tourist visa stay is valid until this September and we are not so sure on what to do in my behalf. So my questions right now is should we file an extension for me as a tourist or should we just file for my green card? And on the other side if we file for my green card since we are already been married for almost 2 years now do we still have to file for AOS(I-485) or not? 
 

Thanks and God Bless Everybody! 

Edited August 10, 2020 by B-ann

[Mystery 2020 30]

There is nothing stopping you getting on a flight back to PH, they are still flying.

 

The lockdown there does not stop you, a Filipino citizen, from entering.

 

You go back before your authorised stay expires.

[SteveInBostonI130 3,468]

If you cannot return to your country due to Covid, then that might be a valid reason to stay and adjust status.

 

There is no "green card application" as you seem to understand it.  There is only Adjustment of Status, I-485, and associated forms and fees.  You will have to call to update the status of your I-130 if it is already at the NVC waiting for embassy scheduling.

[geowrian 22,337]

Option 1: File for AOS now. This is a valid option since you are in the US already.

 

Option 2: Do consular processing abroad. You can return to PH before your stay expires....return flights are available.

If necessary, you can apply for an extension of stay...generally they are being more lenient on these right now due to COVID.

Just know that this typically takes longer to adjudicate than the time frame being requested. Overstay by even 1 day and your existing visa is automatically canceled and you would need a new one.

Generally, I would not suggest the EOS route unless there is no other option available. Odds are you won't be able to successfully visit again after such a long stay for quite some time - the general rule is to be out of the US more than in it...with twice as long being preferred or else they may think you are using a tourist visa to live in the US.

 

Also, be aware of US tax requirements if you stay in the US for at least 183 days in a single tax year  (technically it's 183 days over the current tax year + 1/3 days of prior tax year + 1/6 days from 2 tax years ago). See the substantial presence test for details.

 

Edit: I think you are referring to Removal of Conditions (ROC) with the 2 year marriage piece.

Edited August 10, 2020 by geowrian

[B-ann 1]

4 hours ago, geowrian said:

Option 1: File for AOS now. This is a valid option since you are in the US already.

 

Option 2: Do consular processing abroad. You can return to PH before your stay expires....return flights are available.

If necessary, you can apply for an extension of stay...generally they are being more lenient on these right now due to COVID.

Just know that this typically takes longer to adjudicate than the time frame being requested. Overstay by even 1 day and your existing visa is automatically canceled and you would need a new one.

Generally, I would not suggest the EOS route unless there is no other option available. Odds are you won't be able to successfully visit again after such a long stay for quite some time - the general rule is to be out of the US more than in it...with twice as long being preferred or else they may think you are using a tourist visa to live in the US.

 

Also, be aware of US tax requirements if you stay in the US for at least 183 days in a single tax year  (technically it's 183 days over the current tax year + 1/3 days of prior tax year + 1/6 days from 2 tax years ago). See the substantial presence test for details.

 

Edit: I think you are referring to Removal of Conditions (ROC) with the 2 year marriage piece.

My husband didn’t file for my petition yet so I am not referring to removal of conditions(ROC) we are not sure on what to do for me if we should file and extension as a tourist or file for my petition which is the I-130 and then the I-485 

[geowrian 22,337]

5 hours ago, B-ann said:

My husband didn’t file for my petition yet so I am not referring to removal of conditions(ROC) we are not sure on what to do for me if we should file and extension as a tourist or file for my petition which is the I-130 and then the I-485 

The options are described above. You need to analyze the pros/cons of each and make a decision that is best for your circumstances and priorities. There is not a universal answer.

IMO, the best options are to either file for AOS now or leave before the I-94 expires and do consular processing for a visa abroad. The extension of stay is probably the worst path in the long run.

 

To answer the direct question asked, an I-485 packet is required for AOS regardless of marriage length. That is the form to apply for the green card.

[JFH 12,190]

13 hours ago, B-ann said:

My husband didn’t file for my petition yet so I am not referring to removal of conditions(ROC) we are not sure on what to do for me if we should file and extension as a tourist or file for my petition which is the I-130 and then the I-485 

The question is whether you are intending to stay here for good or whether you want to return to the Philippines. Only you know the answer to that. 

[Ela G. 389]

It feels like literally everyone on VJ are just adjusting from tourists visas/ESTAs... and of course using the covid-19 excuse. As far as I’m concerned no citizen is ever banned from entering their own home country. Lockdowns do not affect returning citizens. The only valid reason I see is no flights being available to fly back at all. Everything else is just a mere excuse to adjust without -possibly- any consequences 

[geowrian 22,337]

13 minutes ago, Ela S. said:

As far as I’m concerned no citizen is ever banned from entering their own home country. Lockdowns do not affect returning citizens.

Depends on the country. There are some that were stopping all incoming flights and closed the land borders. There is no actual requirement to allow a citizen to enter the country (but there are treaties governing the return of removed citizens from another country, and refusal to accept them tends to result in visa sanctions).

[Ela G. 389]

1 hour ago, geowrian said:

Depends on the country. There are some that were stopping all incoming flights and closed the land borders. There is no actual requirement to allow a citizen to enter the country (but there are treaties governing the return of removed citizens from another country, and refusal to accept them tends to result in visa sanctions).

Yeah that’s what I meant by not having any available flights back because of closed borders. But all those countries that were refusing their own citizens weren’t doing it to tourists but citizens that had valid foreign visas. OP is here in the US on a tourist visa. Anyways, there currently are flights back to the PH.

[Mystery 2020 30]

4 hours ago, Ela S. said:

Yeah that’s what I meant by not having any available flights back because of closed borders. But all those countries that were refusing their own citizens weren’t doing it to tourists but citizens that had valid foreign visas. OP is here in the US on a tourist visa. Anyways, there currently are flights back to the PH.

Exactly. OP is abusing the system and the sooner these adjustments are banned the better. 

[Adventine 3,201]

Sorry to hear you're having issues but we need to clarify your statement below.

 

 

On 8/10/2020 at 1:21 PM, B-ann said:

Hi everyone, 

 

This thread of mine might be asked before but I can’t find any related topic in my situation. So here’s my situation: 

 

I am currently in the US right now with my  US citizen husband(we got married in the Philippines) and our son(which is a US citizen) since March. Due to covid I am not able to go back home for now since our country is on lockdown. My tourist visa stay is valid until this September and we are not so sure on what to do in my behalf. So my questions right now is should we file an extension for me as a tourist or should we just file for my green card? And on the other side if we file for my green card since we are already been married for almost 2 years now do we still have to file for AOS(I-485) or not? 
 

Thanks and God Bless Everybody! 

 

The Philippines has been on lockdown since March - that's true. 

 

"I am not able to go home" - that is, unfortunately, false. 

 

Throughout the lockdown, thousands of PH citizens have returned to the country through normal commercial flights. either because they lost their jobs overseas or (like my friend who just returned this week) they did not want to overstay their US tourist visa.

 

My friend's flight was cancelled and rebooked thrice by her airline, but she eventually got home before her tourist visa expired. Upon arrival in Manila, she also needed to quarantine and get a COVID test before being allowed to go home.

 

So, coming back to the PH is difficult and expensive, but not impossible. 

You have to be clear on your reasons for wanting to stay in the US rather than the PH. Is because coming back to the PH is such a hassle right now? Are you all planning to stay in the US indefinitely?

 

You need to be clear about your intentions and plans for the future. That will point you towards the next steps.