I-485 while an I-130 is pending

[hcj 0]

  scy said:

I'm eagerly awaiting the results of your search.

First, the post I was thinking of:

http://www.visajourney.com/forums/index.ph...indpost&p=93867

You were telling Stina and Chiara that even though they entered legally, on K-1 visas, if they do not for AOS on time they could be denied.

Exact quote: "Believe all you want about the legality of your current stay. But as of this moment, you do not have legal status inside the US. You are here illegally. And your adjustment of status can be denied because your authorized stay expired before you filed for adjustment of status."

I agree with the first part. They are out of status after the 90 days if they do not file for AOS. But the second part is not true. Overstay -- no matter how long -- is forgiven for immediate relatives of USCs as long as they do not leave the US before their GC is granted.

Here is my "official source":

From http://uscis.gov/graphics/howdoi/lpreligibility.htm#j

"If "otherwise eligible" to immigrate to the U.S., immediate relatives may adjust status to LPR (get a "green card") in the United States even if they may have done any of the following:

* worked without permission,

* remained in the U.S. past the period of lawful admission (e.g., past the expiration date on your I-94) and filed for adjustment of status while in an unlawful status because of that,

* failed otherwise to maintain lawful status and with the proper immigration documentation, or

* have been admitted as a visitor without a visa under sections 212(l) or 217 of the Act (which are the 15-day admission under the Guam visa waiver program and the 90-day admission under the Visa Waiver Program, respectively)."

[chocolaterie 1]

in my experience, the immigration officer I spoke with at the Phoenix office told me I needed an approved I-130 before filing my I-485. Unless of course I filed them concurrently.

[hcj 0]

  scy said:

So you agree that the I-130 has to be approved before the I-485 can be approved. In your earlier post you wrote "It is true that USCIS may, at their discretion, adjudicate an application without an interview. However, in cases where I-130 and I-485 are filed together, and an interview is given, both petitions are adjudicated at the same time, at the interview."

They are not adjudicated "AT THE SAME TIME". They can not be, if one has to be approved before the other can be approved. At the same time means simultaneously or concurrently. The adjudicator can not stamp approved on both I-130 and I-485 "AT THE SAME TIME". He has to approve the I-130 first. This can be done 1 second, 1 week, or many months prior to approving the I-485, but it still has to be done first.

Now you're just talking semantics. Who's a sore loser now? Whether the approvals are separated by 1 second or 1 minute at the interview, most of us would still define that as being "at the same time, at the interview".

Besides, don't change your tune. May I remind you of what you claimed a few posts ago:

"The I-130 and I-485 are definitely NOT adjudicated at the adjustment of status interview."

  chocolaterie said:

in my experience, the immigration officer I spoke with at the Phoenix office told me I needed an approved I-130 before filing my I-485. Unless of course I filed them concurrently.

Thanks for the addition. I do want to point out that all of my comments are specifically directed to cases where I-130 and I-485 are filed concurrently, and I have tried to be very clear about that. But in case it was missed, I'm going to say it again. I was specifically addressing scy's comment that other visa adjustments (from B-2, VWP, work visas, etc.) take place in a two step process and are not adjudicated together at the interview, which is not true.

  JayJay said:

*Says very quietly*

Ahem...

Es'cuse me but...I got an email saying "your I-130 has been approved" on March 30th, and our interview for AOS was March 29th..

*Bats eyelids* Can I derefore pwease assume dat de I-130 wuz adjoodicatid at deh intervoo?

Or am I TOTALLY wrong?

Hey JayJay -- my experience exactly.

[JayJay 4]

  Quote

"Believe all you want about the legality of your current stay. But as of this moment, you do not have legal status inside the US. You are here illegally. And your adjustment of status can be denied because your authorized stay expired before you filed for adjustment of status."

Also...ahem...heheheheh..I adjusted from VWP, I OVERSTAYED..

*waits for gasps and shocked hand gestures to pass..*

...overstayed by about 30 days (needed to get the medical done) and oh yes, I was DEFINATELY denied. Not.

I was denied so badly, the lady took my EAD away and put a stamp in my passport! Bwah-ha!

*runs away cheekily wiggling posterior*

[eau_xplain 2]

Putting semantics aside, I believe the OP can already apply for AOS if they already want to even if the I-130 is pending. They will just include NOA1 for the I-130 as one of the initial evidence of her eligibility to file for AOS.

Edited April 1, 2006 by eau_xplain

[samantha_lou 0]

  JayJay said:

  Quote

"Believe all you want about the legality of your current stay. But as of this moment, you do not have legal status inside the US. You are here illegally. And your adjustment of status can be denied because your authorized stay expired before you filed for adjustment of status."

Also...ahem...heheheheh..I adjusted from VWP, I OVERSTAYED..

*waits for gasps and shocked hand gestures to pass..*

...overstayed by about 30 days (needed to get the medical done) and oh yes, I was DEFINATELY denied. Not.

I was denied so badly, the lady took my EAD away and put a stamp in my passport! Bwah-ha!

*runs away cheekily wiggling posterior*

LMAO, JayJay, you crack me up!

[maria_b84 0]

Hi Guys....don't worry, I think I solved everything out. My I-130 was approved yesterday!!!!!!!! It says online, I just have to wait for the NOA2 now....but they say they have already sent it. So, now my question is: when I file the AOS do I have to send a copy of my I-130 NOA2 to show that it has been approved?

[scy 0]

  hcj said:

  scy said:

I'm eagerly awaiting the results of your search.

First, the post I was thinking of:

http://www.visajourney.com/forums/index.ph...indpost&p=93867

You were telling Stina and Chiara that even though they entered legally, on K-1 visas, if they do not for AOS on time they could be denied.

Exact quote: "Believe all you want about the legality of your current stay. But as of this moment, you do not have legal status inside the US. You are here illegally. And your adjustment of status can be denied because your authorized stay expired before you filed for adjustment of status."

I agree with the first part. They are out of status after the 90 days if they do not file for AOS. But the second part is not true. Overstay -- no matter how long -- is forgiven for immediate relatives of USCs as long as they do not leave the US before their GC is granted.

Here is my "official source":

From http://uscis.gov/graphics/howdoi/lpreligibility.htm#j

"If "otherwise eligible" to immigrate to the U.S., immediate relatives may adjust status to LPR (get a "green card") in the United States even if they may have done any of the following:

* worked without permission,

* remained in the U.S. past the period of lawful admission (e.g., past the expiration date on your I-94) and filed for adjustment of status while in an unlawful status because of that,

* failed otherwise to maintain lawful status and with the proper immigration documentation, or

* have been admitted as a visitor without a visa under sections 212(l) or 217 of the Act (which are the 15-day admission under the Guam visa waiver program and the 90-day admission under the Visa Waiver Program, respectively)."

Do you see the use of the words "CAN BE DENIED". The way it is use means that they can be denied, not that they will be denied. There is a difference in the way can and will is used in a sentence. A statement that includes the word will reflects a prediction made by the person writing the statement that something will occur. i.e., it's a statement of fact from that person because the person has personal knowledge of the events.

Whenever can is used in the way I used it, it is a statement of opinion that something can occur. I'm not prediciting that it will occur, I'm predicting that it can or might occur. In fact, no one aside from the adjudicator knows whether a case will be denied.

You quote the law, but also fail to quote the part that says that any illegal stay is inelligible to adjust status.

If this is the best proof you can come up with that I'm giving out the incorrect information, then I pity you. I hope for your sake that you never study law or any subject that requires rational thought and evidence to backup your claims.

  hcj said:

  scy said:

So you agree that the I-130 has to be approved before the I-485 can be approved. In your earlier post you wrote "It is true that USCIS may, at their discretion, adjudicate an application without an interview. However, in cases where I-130 and I-485 are filed together, and an interview is given, both petitions are adjudicated at the same time, at the interview."

They are not adjudicated "AT THE SAME TIME". They can not be, if one has to be approved before the other can be approved. At the same time means simultaneously or concurrently. The adjudicator can not stamp approved on both I-130 and I-485 "AT THE SAME TIME". He has to approve the I-130 first. This can be done 1 second, 1 week, or many months prior to approving the I-485, but it still has to be done first.

Now you're just talking semantics. Who's a sore loser now? Whether the approvals are separated by 1 second or 1 minute at the interview, most of us would still define that as being "at the same time, at the interview".

Besides, don't change your tune. May I remind you of what you claimed a few posts ago:

"The I-130 and I-485 are definitely NOT adjudicated at the adjustment of status interview."

It's not sematics. If two events occur, one after the other, it's not occuring simultaneously the way you wrote it. You should notice that Folinsky whenever he mentions the I-130/I-485 never mentioned that they occur simultaneously. He said they are adjudicated together, which means they are grouped together. Perhaps your grasp of the complexity of the English language is lacking. I already mentioned this but you insist on arguing about it.

As for the adjudication of the I-130/I-485 at the interview, I mentioned that the adjudication is a process not any single event. The final decision on the adjudication process might be made at the interview or it might not be. Adjudication is an ongoing process that starts as soon as the adjudicator obtains the case. To say that it is adjudicated at the interview is oversimplification. You seem to think that adjudication is the only the final act of approval or denial, when in fact it is not.

  JayJay said:

*Says very quietly*

Ahem...

Es'cuse me but...I got an email saying "your I-130 has been approved" on March 30th, and our interview for AOS was March 29th..

*Bats eyelids* Can I derefore pwease assume dat de I-130 wuz adjoodicatid at deh intervoo?

Or am I TOTALLY wrong?

Yes you're totally wrong. I don't know how many times I have to say it. Adjudication is not any single act, it is a process. You think that adjudication is the act of approval or denial of the petition, it is not. Adjudication is the process that examines the file in its entirety. This process begins as soon as the adjudicator picks up your case. Think of adjudication as a trial where the adjudicator is the judge, prosecutor and jury combined.

I know you're not the least interested in this subject. But if you choose to inject yourself into a thread, you should at least know what you're talking about.

Edited April 2, 2006 by scy

[scy 0]

  JayJay said:

Also...ahem...heheheheh..I adjusted from VWP, I OVERSTAYED..

*waits for gasps and shocked hand gestures to pass..*

...overstayed by about 30 days (needed to get the medical done) and oh yes, I was DEFINATELY denied. Not.

I was denied so badly, the lady took my EAD away and put a stamp in my passport! Bwah-ha!

*runs away cheekily wiggling posterior*

Congratulations on your AOS approval. You were lucky. Had you had a problem and was denied, you can not appeal the denial since you came on VWP. Your case is an example of what NOT to do to adjust status. Coming and adjusting on the VWP is never a good idea unless there is a very compelling reason for it. Far too many problems can arise whenever anyone adjust from the VWP. Once again you were lucky that you adjusted. But I wouldn't hold your case up as encouragement for others who might be thinking of doing the same thing.

[ChristinaM 0]

As another VWP success story, neither JayJay nor I advocate it as a primary modus operandi and you'll see that we've told people in no uncertain terms that they need to file appropriately for their situation, whilst being fully aware of the risks should AOS from visitor status be the option they choose to take. That's important to note.

Please don't drag that issue into this thread; it's not relevant to the case at hand. The point JayJay was making is that overstay - on many visas - will be forgiven on marriage to a USC provided the correct papers are filed.

[Kez/JWolf 6]

My I-130 has an approval date of 2 days after my AOS......

Kezzie

[scy 0]

  clmarsh said:

As another VWP success story, neither JayJay nor I advocate it as a primary modus operandi and you'll see that we've told people in no uncertain terms that they need to file appropriately for their situation, whilst being fully aware of the risks should AOS from visitor status be the option they choose to take. That's important to note.

Please don't drag that issue into this thread; it's not relevant to the case at hand. The point JayJay was making is that overstay - on many visas - will be forgiven on marriage to a USC provided the correct papers are filed.

The issue wasn't dragged into this thread by me. I merely responded to the tone of the post that started the issue which seems to note with some glee that adjustment of status from VWP was so easy for her.

I fully understand the point she was making. And I personally think that people like her who flout immigration laws make things worse for others who had legitimate reasons to overstay. The House passed a bill that criminalizes illegal stay. This would make adjustment impossible for anyone who overstayed. They did this because far too many people think immigration law is trivial and continually violate it when they had no compelling reasons to do so.

[ChristinaM 0]

I'm interested. What's a "legitimate" overstay in your opinion? If not being able to get the medical done to file an otherwise complete package is not a legitimate overstay, what is? (I'm interested partly because I had to travel two states away to get my medical done in less than 6 weeks, which not everybody is able to do.)

To the OP, sorry for taking your thread off-topic. Normal service will resume shortly

[Kez/JWolf 6]

I adjusted from a VWP and yes I have to say it was a very easy proccess... I did not have any over stay as I was able to file for AOS before my I-94 expired...

Working on your theory anyone who does not file before their I-94 expires would be denided including all the K1's who wait to file for AOS until after their 90 days for whatever reason....

Now that would be interesting....

Kezzie

[ChristinaM 0]

  Quote

Working on your theory anyone who does not file before their I-94 expires would be denided including all the K1's who wait to file for AOS until after their 90 days for whatever reason....

Now that would be interesting....

Now wouldn't that be interesting!