COVID situation requiring action. I-539 or I-485 with CR1?

[OLDYES79 0]

Hi everybody and hope you are having a safe new year.

 

I need advice please. My wife is a Chinese citizen. We applied for CR1 and received NOA1 back in Aug 2020. My wife had a pre-existing B2, which we risked for her to come to the US at end of Oct 2020. Fortunately she was allowed through with an I-94 valid until April 2021. We are happily staying secluded in Louisiana together. Thank you for all the advice on that BTW!

 

We had return tickets for her return at the end of Feb 2021. A month ago, American airlines cancelled our flight. When we tried to rebook, we were told all flights until May 1 is either booked solid or cancelled. We called back every other day and nothings changed. There are some weird travel agencies we tried to book with, but the requirement to board Chinese airlines to China requires submitting negative COVID tests to the Chinese consulate in Houston. However, the Chinese consulate in Houston has been closed for months and they are not answering any calls.

 

Basically, we believe that my wife will be stuck here past the April deadline. We consulted around, including from USCIS, and received many suggestions. This is where we need some advice. From what we gathered, here are our 2 possible options that seem to make the most sense. 

 

Option 1: Apply for I-539 visa extension, which is suppose to extend validity date by up to 6 more months. Even if the I-94 expires during the I-539 pending process, we were told my wife would be safe from any problems.

 

Option 2: Apply for I-485 change of status. Similar to the I-539, the expiration date for her I-94 will not be a concern during the I-485 pending status. We would also be concurrently submitting a I-131 so that she can travel outside the US if necessary. 

 

I also want to share that my wife doesn't have a job that is forcing her to return to China and she is financially stable in China as well. We are trying to avoid any delays to our spouse visa/GC process but we gotta do something now. I would appreciate any advice or insight anyone can provide. Thank you.

[Duke & Marie 1,389]

I just did a quick flight check, there are available flights to China offered by many airline inc AA you just have to be prepared to pay the price of the ticket. 
 

you can file an extension but doubt you’ll get a response prior to i94 expiring running the risk of overstay, cancellation of b2 and unlawful presence in the US, priority should be placed on her returning home and remaining legal at all times.

 

if she’s in the country she can file AOS and go to the back of the GC line since it’s a seperate application and not related to the CR1.. as you can see by my timeline, I did this when the pandemic started and 9 months later still waiting without EAD/Travel/GC average timeline Issuance of GC is 12-36 months depending on local office.

Edited January 28, 2021 by Duke & Marie

[OLDYES79 0]

1 hour ago, Duke & Marie said:

I just did a quick flight check, there are available flights to China offered by many airline inc AA you just have to be prepared to pay the price of the ticket. 
 

you can file an extension but doubt you’ll get a response prior to i94 expiring running the risk of overstay, cancellation of b2 and unlawful presence in the US, priority should be placed on her returning home and remaining legal at all times.

 

if she’s in the country she can file AOS and go to the back of the GC line since it’s a seperate application and not related to the CR1.. as you can see by my timeline, I did this when the pandemic started and 9 months later still waiting without EAD/Travel/GC average timeline Issuance of GC is 12-36 months depending on local office.

Thanks for quick reply! I said the same thing to the AA rep. I just called again and destination to Guangzhou airport still can not be booked. Rebooking can not be done online for whatever reason. We've rebooked to other China airports but they've been cancelled too after rebooking. At this rate, we don't think buying new outrageously expensive tickets would work either. They'll prolly end up having those tix cancelled too. Plus the approval from closed consulate to board is another hurdle we don't think we can overcome.:(

 

I'm in agreement that we won't get an extension response prior to I-94 expiration, but wouldn't the pending process still protect her from being considered unlawful presence? 

 

Thanks for the info on AOS. I hope your processing happens soon. Just curious, did you also concurrently file I-765 and I-131 with it? If you could do it again, would you?

[Duke & Marie 1,389]

1 minute ago, OLDYES79 said:

Thanks for quick reply! I said the same thing to the AA rep. I just called again and destination to Guangzhou airport still can not be booked. Rebooking can not be done online for whatever reason. We've rebooked to other China airports but they've been cancelled too after rebooking. At this rate, we don't think buying new outrageously expensive tickets would work either. They'll prolly end up having those tix cancelled too. Plus the approval from closed consulate to board is another hurdle we don't think we can overcome.:(

 

I'm in agreement that we won't get an extension response prior to I-94 expiration, but wouldn't the pending process still protect her from being considered unlawful presence? 

 

Thanks for the info on AOS. I hope your processing happens soon. Just curious, did you also concurrently file I-765 and I-131 with it? If you could do it again, would you?

Yes I concurrently filed and no, I’d go home... if I’d of gone home I’d of had my interview and 10 year GC last October when they scheduled it, but instead because I didn’t go home I had to cancel my IR1 interview  and I’m stuck still waiting impatiently here in Louisiana after 2.5 years of immigration bs and no closer than when we first started this back in 2018... 

[pushbrk 12,898]

There is a judgment call for you to make here.  Your options are for her to return to China before staying too long, or to adjust status.  Which option is best for you depends on both your priorities and the availability of flights to return to China.  Tough situation.  Lots of those now due to COVID.

[ReasonableOrange8 11]

On 1/28/2021 at 11:32 AM, OLDYES79 said:

Hi everybody and hope you are having a safe new year.

 

I need advice please. My wife is a Chinese citizen. We applied for CR1 and received NOA1 back in Aug 2020. My wife had a pre-existing B2, which we risked for her to come to the US at end of Oct 2020. Fortunately she was allowed through with an I-94 valid until April 2021. We are happily staying secluded in Louisiana together. Thank you for all the advice on that BTW!

 

We had return tickets for her return at the end of Feb 2021. A month ago, American airlines cancelled our flight. When we tried to rebook, we were told all flights until May 1 is either booked solid or cancelled. We called back every other day and nothings changed. There are some weird travel agencies we tried to book with, but the requirement to board Chinese airlines to China requires submitting negative COVID tests to the Chinese consulate in Houston. However, the Chinese consulate in Houston has been closed for months and they are not answering any calls.

 

Basically, we believe that my wife will be stuck here past the April deadline. We consulted around, including from USCIS, and received many suggestions. This is where we need some advice. From what we gathered, here are our 2 possible options that seem to make the most sense. 

 

Option 1: Apply for I-539 visa extension, which is suppose to extend validity date by up to 6 more months. Even if the I-94 expires during the I-539 pending process, we were told my wife would be safe from any problems.

 

Option 2: Apply for I-485 change of status. Similar to the I-539, the expiration date for her I-94 will not be a concern during the I-485 pending status. We would also be concurrently submitting a I-131 so that she can travel outside the US if necessary. 

 

I also want to share that my wife doesn't have a job that is forcing her to return to China and she is financially stable in China as well. We are trying to avoid any delays to our spouse visa/GC process but we gotta do something now. I would appreciate any advice or insight anyone can provide. Thank you.

Did you guys end up go to China or file I-539 and do AOS?

For a 6 month tourism visa, you just need to get out of the US before the deadline, i.e. don't have to go to China. UAE (Dubai really) / Turkey  / Ukraine are good places to land cuz the Chinese passport doesn't need a visa.