Hi, just found this forum and have an urgent situation with my wife who is here on her B2. We are getting ready to file the I-130 petition, but she only has less than 2 weeks remaining on her B2 stay this time(multiple entry 10 year visa) and she wants to stay here until April. We are wondering if it is ok to file an I-539 to extend and then file the I-130 after that. Does anyone know if filing the I-539 electronically gets you a receipt right away so that you don't have to worry about going out of status?
I-130 and B2 extension
- Thread starter journeyer
- Start date
Jackolantern
Registered Users (C)
Filing both the B2 extension and I-130 would be useless.
They're not going to approve the extension if you file the I-130. Extensions take months to be approved, by which time they would become aware of the I-130 and reject the extension. And they reject most B2 extension requests anyway, even if there is no I-130 involved.
If you are you a US citizen, you can just file I-485 with the I-130, which would make the B2 extension unnecessary.
They're not going to approve the extension if you file the I-130. Extensions take months to be approved, by which time they would become aware of the I-130 and reject the extension. And they reject most B2 extension requests anyway, even if there is no I-130 involved.
If you are you a US citizen, you can just file I-485 with the I-130, which would make the B2 extension unnecessary.
I am a US citizen. She is Brazilian.
In our case I don't think it is quite that simple. I am hesitant to AOS here. Immigration gave my wife a hard time at POE this time because she has been here so much the last 2 years(never out of status). They gave her the 'you live here' treatment. Providing strong ties to her home country did not help. The IO was a particularly difficult person. Also, I have had 2 attorneys advise me that AOS is risky in our situation. She has to go back to her country in 2 months anyways, so we would have to also risk getting advance parole in that time. If we didn't it would not be good for her if she got stuck here and could not go back. So we were just going to use the extension to buy some extra time, we know they probably will not approve it. I was just wondering if it safe to do so and not risk our I-130 petition, especially if they deny the extension before she leaves and then she has some days out of status. Even the lawyers do not seem to have a strong opinion on that question. They are like 'uh, well, you could try it'.
And also we are wondering if we file it online tomorrow(the I-539), how long until we get the receipt so we don't risk her going out of status before they actually acknowledge receiving it?
namecheckvictim
Registered Users (C)
You can file I-130 and I-485 immediately, any overstay incurred after a filed I-485 is protected, there is no need to file a I-539.
I know, but we are hesitant to AOS here for a couple of reasons. We never had any preconceived intent to marry here and AOS, but I am still worried that they are going to say we did. We did have preconceived intent to marry at some time and for her to return to her country and start the CR-1 process, but I think that is not an issue from what I have learned so far.
My friend if your marriage was entered in a good faith you should not have any problems filing i-485 and i-130. She is your legal wife and just keep that in mind if she had problems coming back to US last time she will again have problems in the future. So the best option for you is to apply for her AOS. There are so many cases that they have overstayed and adjusted there status. if filed i539 and denied there will be more problems for you in the future so better for you is too file AOS.
You should talk to different attorney in this regard.
Thanks. I know overstay would not be an issue with our AOS. The problem is not that, and both lawyers I have spoken with told me that overstay is not an issue if I am a US citizen and the marriage is real. The marriage is real, we have been pretty much lived together for most of the last 2 years and we have mountains of evidence supporting that we are a real couple. The problem I am worried about is them accusing her of coming in on the B2 with intention of marriage and AOS. Why do you think that getting the I-539 denied would cause issues with the I-130? She probably would not be coming back here on the B2. I doubt they would let her in for at least 6 months and if we can buy a couple of months with the extension and file the I-130, by the time she goes back we will be well into the process. I have heard some horror stories about people getting denied AOS and then the wife of the citizen getting banned from US for life. Not sure if that is true, but if so, it is not worth risking.
Oh, I should add. I did talk to one other attorney that did advise me to AOS. He was so overly confident about it that is scared me, after the other 2 attorneys told me to NOT AOS no matter what. I am beginning to think that attorneys are all crazy and that they just want your money.
well its totally your call on which way to go. I got my Green card last year and was marriage based and i came to U.S on B2 visa. In the interview was never asked about my B2 visa just question about marriage and relationship with my spouse that it.
As a U.S citizen it is your right to be with your spouse. They need strong evidence to deny your case. I had been a user of this forum for more than 2 years and the cases (rearly) put in pending coz lack of evidence and not preparing for the interview. In life there are alot of if and buts ..... but you never know whats gonna happen still always hope for the best.
The reason i am not in favor of extension is coz is suppose god forbid she gets denied she will be in removal proceeding meaning if you apply for AOS after getting denied for the extension. The denial itself will be negative on your wife case and will show immigration intent for your wife for just to stay in U.S. Anything negative can ruin yours and your wife life so thats why i told you to consult another attorney. Applying on a B2 visa is not a problem and your marriage is more than 2 years old so itself is a big proof for you and being approved will get a 10 year green card
Jackolantern
Registered Users (C)
She already got harassed at the port of entry for staying in the US too much. You know for sure they're not going to approve the B2 extension. And when they deny the B2 extension, it could be accompanied by a Notice to Appear which means she'd be seeing an immigration judge to fight deportation and it will be up to the discretion of the judge whether to allow AOS (because normally filing for AOS is not permitted after removal proceedings have begun).
Whereas if she files for AOS, that may conflict with whatever she told the officers at the port of entry (does she remember what she said and what they said?), and result in denial for lying at the port of entry. If what she said won't be categorized as lying as a result of filing for AOS, then the AOS would have less risk than filing the B2 extension. How long has she been in the US on this visit ... close to 6 months?
Whereas if she files for AOS, that may conflict with whatever she told the officers at the port of entry (does she remember what she said and what they said?), and result in denial for lying at the port of entry. If what she said won't be categorized as lying as a result of filing for AOS, then the AOS would have less risk than filing the B2 extension. How long has she been in the US on this visit ... close to 6 months?
Triple Citizen
Registered Users (C)
I also think the best approach is to drop the idea of EOS altogether. The OP's wife should leave in a timely fashion and get an immigrant visa via consular processing. As I have said before in other threads, separation is over rated and hormones can be controlled 
Last edited by a moderator:
Exactly. We are only trying to buy about a month of extra time.
We are not going to AOS. Not worth the risk. They deport people for filing an extension? I am not saying that does not happen, just I have not heard about it so far. What I have been seeing so far researching on the web, is that if someone gets a denial, they get a letter of denial giving them 30 days to depart. It apparently may invalidate the B2, but so far I have not heard of anyone getting deported for a denial, if they then leave on their own. We were not even going to wait for the denial. We would just file it and then she would leave, hopefully before they even review it. What I am trying to find out is would it cause problems with our I-130 even though she returns home to wait for that?
She has only been here for 3 weeks. They would only give her a month this time, because they said she is staying here too much. So filing the extension would only be to buy some extra time. We need about an extra month to do some things before she leaves. We are going the CR-1 route, that is already decided.
Triple Citizen
Registered Users (C)
Since she got a restricted I-94, then for sure do not file an I-539 for EOS in my opinion.
Ok, let me clarify once more. We are not going to AOS. I have consulted 3 attorneys so far. Each of them have told me complete and opposite things of what the other advised me. 2 of them also told me things that I know are not true, things that any immigration expert should know better than to say. At this point I have about ran out of faith in attorneys. If I can find one that does not lie to me, or that is not crazy, I wouldn't mind paying them to help me.
I also think the best approach is to drop the idea of EOS altogether. The OP's wife should leave in a timely fashion and get an immigrant visa via consular processing. As I have said before in other threads, separation is over rated and harmones can be controlled
It's not a question of hormones, lol. We are not in our twenties. Filing the extension is much cheaper than buying a new return ticket for one thing, about half as much. And of course we all want to minimize our separation with our special other for more reasons than just hormones.
So you are saying you think it could hurt our CR-1 process? That is really what I am trying to find out.
Triple Citizen
Registered Users (C)
A restricted I-94 will not hurt your CR-1 process on its own. However, the worst case scenario of applying for EOS on a restricted I-94 may cause issues with a hardlined consul during her CR-1.
Jackolantern
Registered Users (C)
You think the time leading up to the extension denial is "bought time"? Considering the circumstances, a denial of the extension would probably result in the time spent after her I-94 expiration being deemed as an overstay. They don't want people to "buy time" by frivolously filing extensions; people with the mindset "Oh, so they gave me only X months? Well I'll just file for an extension and it will take them a couple months to deny it so that will give me 2 extra legal months in the US!"
For most people that's what happens -- with the denial they give them a deadline to leave. For others, they want to get rid of them ASAP and will immediately put them in removal proceedings after the extension denial. She's probably better off just doing a regular overstay for a few weeks instead of frivolously filing for an extension that will surely be denied.
Last edited by a moderator:
IF she files the I-539 before falling out of status, she will have a reciept that puts her in a "period of authorized stay" during the pendency of the properly filed I-539. AFTER it is filed, THEN you file your I-130 and indicate Consular Processing just as you want to do. By the time the I-539 gets denied, she may have already departed OR the denial will advise her to either leave immediately or more often "within 30 days". In either case, she was planning to leave anyway. Even if she is "out of status" after the date of the denial but before her planned departure, Unlawful Presence does not become a "bar to addmission" until one builds up 180 days of it.