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Adjustment of status - married to LPR

Discussion in 'Family Based Green Card -Through Marriage/Relative' started by Lightblue, Jan 30, 2010.

  1. Lightblue

    Lightblue Registered Users (C)

    I am a LPR. My wife has I-130 approved, so we are now waiting for the visa number to become available to her. We would like to apply to adjust her status to LPR. The only issue we see with filing form I-485 is that her visa has expired while we were waiting for visa number to become available (she was in legal status when we filed I-130). Would there be any issues with adjusting her status? I have been reading about possibly filing for INA 212 waiver to help with the “out of status” issue, but some people are saying that it would not work, even if the law says it is applicable to LPR as well as to US citizen.
     
  2. PR81502

    PR81502 Registered Users (C)

    Your wife can't file an I-485 since she is out of status and you are an LPR at present. It(I-485) will be denied and USCIS will begin deportation proceedings against her. She has to wait until you become a US citizen to file the I-485 then her unlawful presence here will be forgiven. If the visa number becomes available before you become a US citizen and she goes back home to apply for the immigrant visa, the chances of having the I-212 and I-601 approved are very low. The best thing is for her to keep a low profile and don't get in any problems with law enforcement authorities and hope and pray ICE does not come looking for her.

    "I did FP before scheduled date. Seems like majority do this. I think you can go and try, as long as you have GC and FP notice. Good luck!
    I just notice we sent N-400 at the same day December 21!"

    Based on your post in another thread you have sometime to wait at least 3-5 months before you become a US citizen. So just wait it out. She must not leave the US until she has the GC in hand. Don't even consider having her go overseas if the visa number becomes available while you are an LPR because she will be banned for 10 years.
     
    Last edited by a moderator: Jan 30, 2010
  3. Lightblue

    Lightblue Registered Users (C)

    Hi PR81502. Thanks for reply. I have couple more questions.
    Why do you think the chances of getting I-212 approved are very low? Were did you get the statistics or do you personally know anybody who tried? I have not even heard of a person who tried. And it says in the instructions that you don't have to leave the US to apply for a waiver, you could do it here.

     
  4. PR81502

    PR81502 Registered Users (C)

    She does not need a waiver once you become a US citizen only if she does consular processing for her GC. Generally these waiver are very difficult to get and is advised that they be done using an attorney who has experience with the I-212/601. That's why she should only do I-485 after you are a US citizen. You just be patient and go through your N-400 process and your wife will be home free.

    As soon as you become a US citizen have her file the I-485 package(I-485, I-765, I-864, G-325a, with a copy of the I-797 notice of approval of the I-130 and a copy of your naturalization certificate). Please follow all the instructions for all the forms mentioned above with the supporting documents. In the mean time try getting joint bank accounts, credit cards, health and auto insurance, joint utility bills etc. with both names on them for her GC interview. If both of you have kids from the marriage better still. If your N-400 is a simple straight forward case then you will be a US citizen in 3-5 months and your wife will get her GC in 3-6 months after your naturalization.

    Good luck and God bless.
     
    Last edited by a moderator: Jan 31, 2010
  5. Lightblue

    Lightblue Registered Users (C)

    That is the thing my N-400 not that straight forward. If I would be sure 100% that I will become citizen I would just wait patiently and not to worry about anything. But as you know at times citizenship application might lead to citizenship but at times to serious complications. That is why I try to explore other option while I still can. While I still don't reach point of no return.
    Please could you answer my previous questions, if you know the answers of course. I appreciate your responses, thank you for your answers again. I completely aware about citizenship and how easy it makes everything for her. I would like to get some real experience answers on other options. So if you do know something please advise.
    Maybe point me to the articles about denials of I-212.
    Thank you.

     
  6. PR81502

    PR81502 Registered Users (C)

    She has to file both the I-212(if she gets removed/deported) and the I-601 if you are an LPR. Basically they approve those based on hardship that will be caused to a USC or LPR if the person has to remain outside the US. And only lawyers can review her entire case and decide if it is worth trying. This link is another forum and is very good answering questions http://www.immigration-information....ant-visa-issues/6924-section-212-a-6-c-i.html. I got good advise during my N-400 process.
     
    Last edited by a moderator: Jan 31, 2010
  7. PR81502

    PR81502 Registered Users (C)

    Go to this link specifically about I-212/I-601 http://www.scottimmigration.net/I601Memo.pdf
    Believe me not many immigration lawyers are good at those waivers, only those who have good success rates and there a not many based on all my research and involves a lot of documentation to prove your case for an approval. Your best route is citizenship be positive. If your N-400 is complex seek good immigration legal advise.
     
  8. Lightblue

    Lightblue Registered Users (C)

    Thank you very much. I will be reading those links very carefully.
     
  9. PR81502

    PR81502 Registered Users (C)

    More links: http://www.aila.org/content/default.aspx?bc=1016|6715|20852|30095 and http://www.immigrate2us.net/forum/forumdisplay.php?7-I-212 and http://immigrate2us.net/forum/forumdisplay.php?71-I-601-Waivers-Americas and http://immigrate2us.net/forum/forumdisplay.php?78-I-601-All-Other-Countries
     
    Last edited by a moderator: Jan 31, 2010
  10. PR81502

    PR81502 Registered Users (C)

    Keep in mind she can't adjust status here if you are an LPR she must do consular processing. And that's where the I-212(if she is deported)/I-601 will come in. Here's another link: http://www.aila.org/content/default.aspx?bc=1016|6715|20852|30095
     
    Last edited by a moderator: Jan 31, 2010
  11. Lightblue

    Lightblue Registered Users (C)

    I've been reading a lot about 212 and your own link (I601 memo) as well mentions that you can file in-country.???
     
  12. VisaNutz

    VisaNutz Registered Users (C)

    OP, what is the basis of your waiver? Hardship? Is your wife from the same country as you are? Do you have significant financial ties to USA? Hardship waiver is a tough one - trust me, your wife would need to show there will be extreme hardship on you, and USCIS would most likely say that you could go back to your country to live with her and avoid the hardship.
     
  13. PR81502

    PR81502 Registered Users (C)

    This from the instructions for the I-212 form: " If you are in the United States and will file an application for waiver under section 212 (g), (h) or(i) of the INA with an American Consul, you should file this application and the application for the waiver simultaneously with the American Consul. If you are in the United States and are applying for adjustment of your status under section 245 of the INA, or are seeking to be granted advance permission to reapply prior to your departure from the United States, submit the application to the USCIS District Director having jurisdiction over the place where you are residing."

    If your wife doesn't qualify under section 245 of the INA she must go out of the country to process her IM visa if you are an LPR. Only the State department will process the IM visa. There's no way around that. Either adjustment of status through US citizen spouse or consular processing because you are an LPR that is where the I-601 waiver will come in. If she does not qualify under 245(i) she has to face the I-601 waiver but she will only get her GC through CP. So her best bet is your N-400 being approved quickly.
     
    Last edited by a moderator: Jan 31, 2010
  14. Lightblue

    Lightblue Registered Users (C)

    Correction - We don't need to file I-212 (Re-entry after removal proceedings etc.), only I-601. She was never in the removal proceedings and was properly inspected while entering the US. Do you think this will make a difference if either possible to apply in-country? Do you know any good attorneys?
    I appreciate you sharing your thoughts on this matter.
     
  15. Lightblue

    Lightblue Registered Users (C)

    Yes, we need a hardship waiver. We are from the same country - why does this make a difference? I do have some financial ties and loans to repay.
    Thanks for the reply.
     
  16. PR81502

    PR81502 Registered Users (C)

    That's what I have been trying to say to you it comes into effect only if goes outside the US. But as it stands with you being an LPR she can't get her GC via adjustment of status. It will only happen if you become a citizen. Otherwise she has to go home to do it if you are not a citizen and that is when she must file I-212(if she gets deported)/I-601 waiver.

    Persons with unlawful presence greater than 180 days who voluntarily departed from the United States without expense to the U.S. Government and without an order of removal or deportation having been entered must file an I-601. So even if she is not deported or removed from the USA and leaves before USCIS starts any proceedings against her she still has to file it to overcome the 3 or 10 years ban. But definitely the I-601 is required once the unlawful presence is more than 180 days.

    So basically she can't benefit from the I-601 in the USA since you are an LPR she must go home. Even if she files it in the USA it is valid for readmission to waive the ban. As I told you before you must have a very compelling case for those waivers to be approved. As for lawyers I don't have any I can suggest.
     
    Last edited by a moderator: Jan 31, 2010
  17. VisaNutz

    VisaNutz Registered Users (C)

    PR.. I might be wrong but I think you are confusing the form number I-212 and INA section 212. Also, "voluntary departure" doesn't mean one left the country before removal proceeding began. "Voluntary departure" is one form of relief from deportation/removal. So, for example, if you were in removal proceedings, judge would give you the option of "voluntary departure", which means you would leave USA within a certain amount of time, and you will not be considered "deported" (although, the fact that you were in removal proceeding won't go away). This way, you won't face the consequences of being "removed/deported" (fox example, if you didn't take the option of "voluntary departure", and the judge found you removable) such as bans and what not. "Voluntary departure" is still a judge ordered option - it doesn't mean that someone just left the country.
    So, if you want to re-enter USA after being in "removal proceedings", you file I-212, along with I-601.

    On the other hand, one could be found inadmissible for many reasons listed in the INA section 212. For example, OPs wife could just leave USA before she is ever placed in "removal proceedings" - and before leaving if she accrued unlawful presence long enough to trigger a ban, she would be found inadmissible under section 212. Then she files I-601, which is an application for a waiver for grounds of inadmissibility under section 212 (and some other). This is completely different situation than the ones require filing I-212.
     
  18. Lightblue

    Lightblue Registered Users (C)

    I am just trying to understand why everybody keeps saying that you need to leave the country and go to consulate processing for the waiver when it clearly says in immigration forms that you can file a waiver (I-601) in-country (while staying in US) if you prove the departure would cause "extreme hardship"?
    For our types of inadmissibility it states that she would be eligibly to file without leaving US.
    Thank you.
     
  19. VisaNutz

    VisaNutz Registered Users (C)

    It makes a BIG difference because USCIS would argue that since you two are from the same country - you are familiar with the language/culture/customs of your wife's home country. Not only that, all your family members are also from the same culture. Which means, even if your wife is not allowed to stay in the US with you, there will be no hardship on you since you could just go back to her country to live with her WITHOUT any significant trouble to readjust into that culture. Look up 212 waiver cases and this argument has been used many times successfully, as well as the decisions have been upheld by BIA.
    Same for the financial ties - unless you have millions of dollars at stake, you will have no significant trouble to move back with her.

    Look, the BASIS of her waiver application would be that if she is not allowed to stay in the US with you, YOU will face EXTREME hardship. But if there is a way to avoid the hardship without significant trouble, there is NO hardship - so no waiver.

    Think about this scenario - a US citizen who is married to his wife from India. The US citizen has never been to India - doesn't know jack about Indian culture, doesn't know the language, has no family members there. On top of that, the USC is disabled and 100% dependent on the Indian wife. Now, if the wife is found inadmissible and she files hardship waiver, she might have a case - it would be of SIGNIFICANT TROUBLE for the USC to move to India to be with his wife, also since he is dependent on her, he needs to be with her.

    And, yes, your wife could file I-601 while in the US. But she needs to file I-485 first. However, if she is put in removal proceedings and if you are still an LPR at that time - through her marriage to you, she won't have any grounds for "relief from deportation" - so 601 wouldn't even matter.

    So, there are only two things you can do -

    1. Become a USC ASAP and pray that your wife isn't put in RP before that. Then file AOS for her.
    2. Your wife leaves on her own - if she is subject to BAN, she can apply for a waiver and pray that it goes through. If it does, she can come hack to US with an IV.
     
    Last edited by a moderator: Jan 31, 2010
  20. VisaNutz

    VisaNutz Registered Users (C)

    OP, where your wife can file I-601 is least of the concerns. You need to have valid grounds for a waiver first.
     

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