Father-in-law asking his daughter (my spouse) to sponsor his affidavit of support for AOS

[KONY2012 0]

Hello fellow VJ-ers,

 

I wanted to run this situation past you all for additional perspective:

 

I am a conditional permanent resident (approved as of Jan 2020) and am eligible to file ROC next month. My wife is my sponsor and has completed the affidavits of support for all of my applications to date and so far, we’ve had no issues with the process.

 

This week, my father-in-law asked my wife if she would complete the affidavit of support for his own adjustment of status application (despite recently becoming married to a US citizen). Based on income, my wife meets the poverty guidelines to be able to do this, but I wanted to provide the full story here to see if there is any reason to be concerned-

 

My wife’s father has been in the USA for around 25 years. He is originally from the Dominican Republic and fathered my wife through an affair back in DR – my wife later moved here as a child with her mother (all legitimate). Later, her father came to the US on a K1 visa with another woman he intended to marry, but for one reason or another it didn’t work out and they broke up. After that he remained in the US undocumented and began another relationship with a US citizen and fathered two children with that woman. They have remained together in a stable relationship throughout his time in the country and this year they decided to get married.

 

He has now begun the process of adjusting status and informed us that his lawyer advised him that it could strengthen his application to have his daughter (my wife) complete his affidavit of support (as opposed to his new wife). I don’t know the ins and outs as to why, but assume it is due to his wife not meeting the poverty guidelines – my wife is planning to meet with him this weekend to find out the exact details for the advice he has been given.

 

Considering the above, am I justified in feeling a little apprehensive about the whole thing? I am concerned of my wife having to support him while we are managing our own lives and trying to start a family. My father-in-law is very self-sufficient and has always managed to find work, but I am a little skeptical about the whole thing – perhaps it’s just nerves around the fact that my ROC is coming up?

 

I’d appreciate any thoughts/experience you all may have to share!

[K1visaHopeful 2,895]

This will have no affect on your immigration process as you are already a GC Holder.

[Dashinka 24,890]

If the FIL is applying for AOS based on marriage, his wife will have to fill out an I864 as well.

[iy2020 118]

You said he entered on a K-1 visa? It was my understanding that the only way to adjust status when entering on a K-1 was via marriage to the original petitioner. I might be off, but I don’t know if he’d be able to adjust from within the US. 

[Chancy 6,243]

8 hours ago, iy2020 said:

You said he entered on a K-1 visa? It was my understanding that the only way to adjust status when entering on a K-1 was via marriage to the original petitioner.

 

That's my understanding as well -- a non-immigrant who entered with a K1 visa may only adjust status on the basis of marriage to the I-129F petitioner.  References --

 

USCIS page for "Visas for Fiancé(e)s of U.S. Citizens" -- https://www.uscis.gov/family/family-of-us-citizens/visas-for-fiancees-of-us-citizens

Failure to Marry Within 90 Days

[...]  if you marry your fiancé(e) after the 90 day period, you may file a Form I-130 [...]  Generally, your fiancé(e) may not apply for a Green Card on any other basis besides marriage to you.

 

INA § 245 (8 USC § 1255) - "Adjustment of status of nonimmigrant to that of person admitted for permanent residence" -- https://www.womenslaw.org/laws/federal/statutes/ina-ss-245-8-usc-ss-1255-adjustment-status-nonimmigrant-person-admitted

(d) Alien admitted for permanent residence on conditional basis; fiancee or fiance of citizen
[...]  The Attorney General may not adjust, under subsection (a) of this section, the status of a nonimmigrant alien described in section 1101(a)(15)(K) of this title except to that of an alien lawfully admitted to the United States on a conditional basis under section 1186a of this title as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien’s nonimmigrant status under section 1101(a)(15)(K) of this title.

 

Requesting input from @HRQX, @Demise, @Villanelle

 

[HRQX 4,145]

24 minutes ago, Chancy said:

-- a non-immigrant who entered with a K1 visa may only adjust status on the basis of marriage to the I-129F petitioner.

That is correct. Thus the only path is through consular processing. Way too early to be filing I-864 forms with NVC but the lawyer may be talking about potential joint sponsor in order to have "ducks in a row" for the Immigrant Visa case.

14 hours ago, KONY2012 said:

He has now begun the process of adjusting status

If the lawyer is talking about filing Form I-485 then the lawyer is incompetent.

 

Your father-in-law's wife can file Form I-130 (with I-130A spouse supplement) but must specify that it is for consular processing. After that is approved your father-in-law will pay the NVC fees and then file Form I-601A: https://www.uscis.gov/family/family-of-us-citizens/provisional-unlawful-presence-waivers "The provisional unlawful presence waiver process allows those individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees); who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview." The visa interview would be in Santo Domingo.

Edited September 3, 2021 by HRQX

[Demise 1,354]

Pretty much, if you enter via a K-1 and don't marry the US Citizen that got you it, then you have to basically proceed as if you entered without inspection. So in his case: I-130 for consular processing -> I-601A -> DS-260 -> Consular interview.