DV 2015 AOS Only

[Sm1smom]

Hi @Sm1smom and @Britsimon!

Thank you for the time you take to answer all these questions!

My husband was selected for DV 2015 with case number AS 4XXX. We are hoping to submit the AOS package in Feb depending on next month's numbers.

My question is about section 3 of I-485 form. It asks "have you ever applied for permanent residence status in the US?" My uncle filed a family based GC for my mother 12 years ago ( F4 category). The case number is not current yet and I am now out of that case anyways because I got married. I think I should answer NO because I have never applied for "PR Status", just a petition was filed for my mother when I was a child (and I was also included in it at that time). Do you think it's the correct answer?

Thank you very much!
Shaya

"NO" is the right answer to select. When you attend your intend, you can bring it up with your IO and get him to confirm that you selected the right response.

 

[Sm1smom]

Right, but then again the Department of State determined that B-2 (visitor) visas may be appropriate for cohabiting (unmarried) partners, whether of the same or opposite sex (See 9 FAM 41.31, pages 25-26), so while they have been living with me I don't think we are exploiting it since we are a committed couple but haven't gotten married yet.

First of all, when did you yourself come to the U.S. and when was the first time your partner came in?

 

[episodesfan]

First of all, when did you yourself come to the U.S. and when was the first time your partner came in?

The whole story is this: we both came in August 2012, where she was on F1 and I on B1/B2. We then went home in May 2012 when she finished her grad degree, had our child in our home country and came back in August 2013 for my grad degree, this time I on F1 and them two on B1/B2. We have traveled home twice: once for X-mas 2013, and for this past X-mas 2014. Always used F1 for me on re-entry and B1/B2 for them. Last entry was early January for us all.

 

[SusieQQQ]

Right, but then again the Department of State determined that B-2 (visitor) visas may be appropriate for cohabiting (unmarried) partners, whether of the same or opposite sex (See 9 FAM 41.31, pages 25-26), so while they have been living with me I don't think we are exploiting it since we are a committed couple but haven't gotten married yet.

That says they should apply for a one year stay on admission and then apply for 6-month extensions? You made it sound like they came in 'as normal' on 6 month entries then left and came back to ensure no overstay?
Anyway I have no idea if this is important or not so will not sidetrack in the absence of mom's advice, especially if there are more important issues that need to be addressed.
Edit: ok mom came in while I was typing!!

 

[episodesfan]

That says they should apply for a one year stay on admission and then apply for 6-month extensions? You made it sound like they came in 'as normal' on 6 month entries then left and came back to ensure no overstay?
Anyway I have no idea if this is important or not so will not sidetrack in the absence of mom's advice, especially if there are more important issues that need to be addressed.

Sorry, our trips home have coincided so we haven't had to apply for extensions but we got a one year stay on admission when we got back after Christmas 2013 from the customs officer, that's why we could stay so long at once in 2014. We have made it clear when we enter the country to the customs officers that they are accompanying me.

 

[Sm1smom]

The whole story is this: we both came in August 2012, where she was on F1 and I on B1/B2. We then went home in May 2012 when she finished her grad degree, had our child in our home country and came back in August 2013 for my grad degree, this time I on F1 and them two on B1/B2. We have traveled home twice: once for X-mas 2013, and for this past X-mas 2014. Always used F1 for me on re-entry and B1/B2 for them. Last entry was early January for us all.

Susie raised an important point which I do agree with. The IO is likely to view your partner as using the B1/B2 visa to live in the US and an AOS petition is likely to be denied.

I know you pointed to 9FAM 41:43 where it says cohabiting partners not otherwise eligible to derivative status may use the B1/B2 visa to stay in the US. The section further says if the individual plans on staying for more than 6 months, they should ask the DHS for a one-year stay at the time of admission, did you guys do that? It looks to me like you guys basically leave before the I-90 expires and seek re-admission to reset the 6 months clock.

Also in order for you guys to use the B1/B2 visa option as a Cohabiting alternative as provided for in 9FAM 41:31, does your relationship meet the definition of "Cohabitation" as outlined by 9FAM 40.1 N.1.2? Is your relationship officially verifiable as cohabiting by your home country and does it bestow the same legal rights and duties possessed by partners in a lawfully contracted marriage? Can the relationship only be terminated by a divorce? Does your partner have potential rights to alimony? Is there right to interstate distribution of estates? If you can answer yes to all of these, then your use of the B1/B2 visa to visa may not be termed an abuse of the visitor visa.

Another issue the IO is likely to raise is the fact that your spouse clearly had plans of adjusting status upon last entry in view of the fact that she already knew of the DV selection prior to being admitted into the U.S. The fact that she has observed the 30/60/90 day rule may not necessarily work in her favor.

 

[episodesfan]

Susie raised an important point which I do agree with. The IO is likely to view your partner as using the B1/B2 visa to live in the US and an AOS petition is likely to be denied.

I know you pointed to 9FAM 41:43 where it says cohabiting partners not otherwise eligible to derivative status may use the B1/B2 visa to stay in the US. The section further says if the individual plans on staying for more than 6 months, they should ask the DHS for a one-year stay at the time of admission, did you guys do that? It looks to me like you guys basically leave before the I-90 expires and seek re-admission to reset the 6 months clock.

Also in order for you guys to use the B1/B2 visa option as a Cohabiting alternative as provided for in 9FAM 41:31, does your relationship meet the definition of "Cohabitation" as outlined by 9FAM 40.1 N.1.2? Is your relationship officially verifiable as cohabiting by your home country and does it bestow the same legal rights and duties possessed by partners in a lawfully contracted marriage? Can the relationship only be terminated by a divorce? Does your partner have potential rights to alimony? Is there right to interstate distribution of estates? If you can answer yes to all of these, then your use of the B1/B2 visa to visa may not be termed an abuse of the visitor visa.

Another issue the IO is likely to raise is the fact that your spouse clearly had plans of adjusting status upon last entry in view of the fact that she already knew of the DV selection prior to being admitted into the U.S. The fact that she has observed the 30/60/90 day rule may not necessarily work in her favor.

I understand, we are registered as cohabiting in our home country, but I would answer no to most of these questions, for example the relationship can not only be terminated by divorce.

We do have an option to go to our home country, get married there and apply for an F-2 visa, come back and then submit DS-260 and apply for AoS. But I'm guessing that is both too risky time wise and because of immigration intent so even waiting 60 days after returning would not be enough? If risky, I'm guessing the CP route is the only option for us then?

 

[Sm1smom]

Sorry, our trips home have coincided so we haven't had to apply for extensions but we got a one year stay on admission when we got back after Christmas 2013 from the customs officer, that's why we could stay so long at once in 2014. We have made it clear when we enter the country to the customs officers that they are accompanying me.

Okay, looks like you guys sort of addressed the requirement to request the DHS for a one year stay when you came in in Dec 2013, however what is the duration of the current stay granted upon admission this time around?

 

[episodesfan]

Okay, looks like you guys sort of addressed the requirement to request the DHS for a one year stay when you came in in Dec 2013, however what is the duration of the current stay granted upon admission this time around?

This time around we only requested the 6 months, because we have been planning on going back in Feb to get married and get her on an F-2 visa.

 

[Sm1smom]

I understand, we are registered as cohabiting in our home country, but I would answer no to most of these questions, for example the relationship can not only be terminated by divorce.

We do have an option to go to our home country, get married there and apply for an F-2 visa, come back and then submit DS-260 and apply for AoS. But I'm guessing that is both too risky time wise and because of immigration intent so even waiting 60 days after returning would not be enough? If risky, I'm guessing the CP route is the only option for us then?

This, I think is actually your best course of action. If you guys can go home get married, and have them return to the U.S. as your derivatives, then fill out and submit the DS-260 form right away, you stand a greater chance of being successful. Of course it may mean traveling with a new born, but not having to deal with trying to proof whether the B1/B2 visa has been abused or not is well worth it in my opinion.

If you decide to go the CP route, the 30/60/90 day rule is not applicable, you do not have to wait to file unless you plan on coming back to process AOS. And if the plan is to process AOS, you might as well stay back and get married in the US, in which case you don't have to wait before submitting your DS-260 form and hope the IO wouldn't question the B1/B2 visa usage or the fact that there was already an immigrant intent prior to the last admission.

 

[Sm1smom]

This time around we only requested the 6 months, because we have been planning on going back in Feb to get married and get her on an F-2 visa.

If only you guys had requested another 1 year stay, you might have been able to further make the argument for your relationship to be viewed as cohabiting during an AOS interview.

Going the AOS route seem dicey to me, you may go for it depending on your comfort level based on everything that's been discussed.

 

[episodesfan]

This, I think is actually your best course of action. If you guys can go home get married, and have them return to the U.S. as your derivatives, then fill out and submit the DS-260 form right away, you stand a greater chance of being successful. Of course it may mean traveling with a new born, but not having to deal with trying to proof whether the B1/B2 visa has been abused or not is well worth it in my opinion.

If you decide to go the CP route, the 30/60/90 day rule is not applicable, you do not have to wait to file unless you plan on coming back to process AOS. And if the plan is to process AOS, you might as well stay back and get married in the US, in which case you don't have to wait before submitting your DS-260 form and hope the IO wouldn't question the B1/B2 visa usage or the fact that there was already an immigrant intent prior to the last admission.

If we'd go this route, we would go home in early Feb to marry and return by mid Feb, with them on F-2 visas. Would it be safe to file the DS-260 as soon as we return or would we need to wait 60 days?

We'd rather take the CP route and deal with the inconvenience of that if it's safer for us. In which case we would get married here soon, file the DS-260, they would stay on the B1/B2, we'd move home in May when I finish my degree and then wait for the GC process to complete before coming back again.

Which of these routes is safer for us?

Also, one thing I'm concerned about is the DS-260 not having been filed or the fee paid. Can we submit the AoS package without the 2NL or are we in a time constraint regarding AoS because we haven't filed the DS-260 yet or paid the fee?

 

[Sm1smom]

If we'd go this route, we would go home in early Feb to marry and return by mid Feb, with them on F-2 visas. Would it be safe to file the DS-260 as soon as we return or would we need to wait 60 days?

We'd rather take the CP route and deal with the inconvenience of that if it's safer for us. In which case we would get married here soon, file the DS-260, they would stay on the B1/B2, we'd move home in May when I finish my degree and then wait for the GC process to complete before coming back again.

Which of these routes is safer for us?

Also, one thing I'm concerned about is the DS-260 not having been filed or the fee paid. Can we submit the AoS package without the 2NL or are we in a time constraint regarding AoS because we haven't filed the DS-260 yet or paid the fee?

In order to process AOS, one is expected to not have immigrant intent upon entering the U.S. on a NIV, of course the intention for a temporary stay can change after admission in which case the person will not be penalized/denied if they apply for an adjustment later on in their stay. You/your spouse have clearly indicated you have immigration intent, I therefore cannot tell you it's okay for you guys to go home, get married and have them return as your derivatives on F2 to facilitate the ability to process AOS following a 60 day wait, or whether or not it's safe to file DS260 immediately upon entry or to wait. I'm sorry I can't tell you what to do in that case.

However in general, while a DV based AOS petitioner is expected to include their DS fee payment receipt and the 2NL with their AOS package, some applicants have had to submit the package without either the receipt or the 2NL without any issue. Of course they attended their interview with the receipt at least. No DV based AOS petition will be approved without the receipt, as a matter of fact, KCC will not efn release the case file to the FO without the fee having been paid.

Have you considered getting married now and submitting the form for CP? Your partner and daughter can always head back home in May while you stay back and continue on OPT pending your interview, following which you now go and join them. Now if for some reason the DV doesn't go through, you probably will be able to return and complete your OPT, and they may be able to join you as F2 derivatives. You can then decide what your next step will be.

 

[Shaya88]

"NO" is the right answer to select. When you attend your intend, you can bring it up with your IO and get him to confirm that you selected the right response.

Thanks Mom! I actually have an infopass this coming Wednesday to confirm it with them. I am just not sure if they will answer to questions about filling the forms.

 

[Abbasali]

Hi,
my number got current on Oct. I have to say that after fingerprint, my case didn't move at all. Got three unfo pass appointments, but no progress. I have just been told that I need to wait....last time being told that If I want, I have to write a letter to expedite the case...maybe be approved, maybe not. Don't know what I should do. It is so frustrating. I am afraid until Sep, I do not get my interview letter yet Please provide me your thoughts. Thank you.

 

[Shaya88]

Hi,
my number got current on Oct. I have to say that after fingerprint, my case didn't move at all. Got three unfo pass appointments, but no progress. I have just been told that I need to wait....last time being told that If I want, I have to write a letter to expedite the case...maybe be approved, maybe not. Don't know what I should do. It is so frustrating. I am afraid until Sep, I do not get my interview letter yet Please provide me your thoughts. Thank you.

Hi. Are you from Iran? It may be pending for your security check!

 

[Abbasali]

Yes, I am from Iran. How do u know that it is because of security check? Are u sure?

 

[Shaya88]

Yes, I am from Iran. How do u know that it is because of security check? Are u sure?

No, I'm not sure. Just guessing! I think interview is schedule after security check. But Iranians sometime have long security checks. You have plenty of time tho. Don't worry.

 

[Sm1smom]

Yes, I am from Iran. How do u know that it is because of security check? Are u sure?

Yep, your delay most likely has to do with background check. They most likely will not schedule your interview until that's done. Now, in the off chance they schedule the interview while background check is pending (which they occasionally do), the petition will not be approved until the background check clears.

 

[Sam2015]

Just 3 questions:
1- fist time I got the approval notes in 45 days for the student visa. This time now 65 days and no answer. Do you have any advise how I can get renew the driving license? It finishing within 10 days.
2- if I got the approval as I pray for that, is it make any problem for applying AOS? As you know I submitted DS-260 on June before applying for the 2nd time extension ( I don't know the situation according what you describe in the immigration intent) .
3- if the student visa denied, can I switch to CP? Is it make daly in my interview or make any problem in general? I remind you I'm 25,xxx Egypt.
I appreciate your opinion.