Hello, my questions related to AOS for Spouse of LPR. If the spouse is in the country on valid dual intent non immigrate status and he/she is able to adjust status based on current priority dates, and than his/her non immigrant visa status expires before the green card interview, can the adjustment of status application be approved, based on timely filing of I-485? In other words, does the spouse need to maintain non immigrant status even after filing for the I-485 until interview?
1AurCitizen
Registered Users (C)
Having a valid I-485, should put the beneficiary in a status of authorized stay if it was properly filed?
USCIS Policy-manual volume-7-part-b-chapter-4#S-G
1AurCitizen
Registered Users (C)
What visa did the spouse enter on and when does the i94 expire?
L1, Nov 19
Your spouse just has to be in status when the I-485 is filed (i.e. received by USCIS). It doesn't matter if they goes out of status after the I-485 is filed and while the I-485 is pending. They can stay in the US for as long as the I-485 is pending, even if they have gone out of status.
SusieQQQ
Well-Known Member
It's not clear from your first post, is there already an approved I130?
No, it will be filed concurrently.
SusieQQQ
Well-Known Member
I stand to be corrected but in my understanding, without an approved petition, your wife is not “able to adjust status based on current priority dates” (quoting from your first post). F2A is likely to retrogress from October, according to USCIS. I don’t know what happens if you’ve concurrently filed i485 and the category retrogresses before the petition is approved, almost certainly to a PD before filing took place. @newacct , @1AurCitizen , what happens in such a case?
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I did read that it is not a bar to adjustment if the i-485 was properly filed, the category is current at the time of filing, no work without work authorization (wait on EAD), etc...
I just wanted check with all of you, to see what you think and most importantly which manual, law or case you can reference for either argument.
Thank you!
USCIS policy-manual chapter-4 #S-G
G. Properly Filed Adjustment Application – INA 245(c)(2) and INA 245(c)(8)
For purposes of the bars to adjustment, a nonimmigrant only needs to maintain his or her nonimmigrant status until the time he or she properly files an adjustment application with USCIS so long as the nonimmigrant does not engage in any unauthorized employment after filing the adjustment application. [43]
43. [^] Even so, a properly filed adjustment of status application does not, in and of itself, accord lawful status or cure any violation of a nonimmigrant visa. For example, if a foreign national applied for adjustment of status three days prior to the expiration of his or her nonimmigrant status and USCIS eventually denies the adjustment application, the foreign national is considered to be in unlawful status after the expiration of the nonimmigrant status. Consequently, if the same foreign national later files a second adjustment application, the period of time after the nonimmigrant status expired and during which the first adjustment application was pending counts against the 180-day period when considering eligibility for relief under INA 245(k) in adjudication of the second adjustment application. See Dhuka v. Holder, 716 F. 3d 149 (5th Cir. 2013).
SusieQQQ
Well-Known Member
I wasn’t thinking in terms of a bar to adjustment, more wondering what she might do in limbo in the US for potentially a couple of years in the case that F2A PDs revert to usual trend/or that the file ends up at CSC and takes 2 years to get approved.
I presume you are applying for EAD and advance parole as well - if your spouse is going to rely on adjustment pending from the end of her L i94, I guess she would like the ability to work and travel.
I presume you are applying for EAD and advance parole as well - if your spouse is going to rely on adjustment pending from the end of her L i94, I guess she would like the ability to work and travel.
Yes, EAD and AP is part of the one step package. She would not work and travel until EAD/AP combo card in hand. She would not be allowed to work and leave the country until the card is received. However, my main question is, if adjustment can be approved, if non immigrant visa expires, after I-485 is properly filed. I understand this can take years, but eventually it should be approved? Also I’m inquiring about a case where the spouse is a green card holder. If the spouse would be a USC, we would not have these questions.
SusieQQQ
Well-Known Member
I may have got a bit sidetracked above on an assumption of proper filing, let me backtrack and rephrase. Put differently, my original question from post 9 would be: is her i485 properly filed if the i130 is not yet approved? I don’t believe it is, but I may be wrong.
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SusieQQQ
Well-Known Member
^ here:
https://www.uscis.gov/greencard/concurrent-filing-form-i-485
Concurrent filing is always allowed for all immediate relatives of a United States citizen, since there are no numeric limitations in this category. However, in some categories, even if there is a visa number available at the time of filing, concurrent filing is not allowed as the intending immigrant must have an approved basis of eligibility (i.e. an approved petition) before being allowed to file for adjustment of status.
https://www.uscis.gov/greencard/concurrent-filing-form-i-485
Concurrent filing is always allowed for all immediate relatives of a United States citizen, since there are no numeric limitations in this category. However, in some categories, even if there is a visa number available at the time of filing, concurrent filing is not allowed as the intending immigrant must have an approved basis of eligibility (i.e. an approved petition) before being allowed to file for adjustment of status.
1AurCitizen
Registered Users (C)
I am not a lawyer, but my advice in layman's terms is to file for an F2a visa under consular processing in the applicant's home country in this scenario. The complexities include petitioner being an LPR and not a USC, the beneficiary's authorized status expiring in 4 or so months, and the I-130 yet to be initiated.
When did the marriage take place, and if not recent, what has precluded the I-130 from been filed?
USCIS Policy Manual Volume 7 Part A Chapter 3 section C:
INA 203(a) is the F1, F2A, F2B, F3, F4 categories.
SusieQQQ
Well-Known Member
So on your reading OP will be fine, as long as they go ahead and file before the category retrogresses?
yes
1AurCitizen
Registered Users (C)
I'm made to understand that the beneficiary of an LPR petitioner must be in legal status at the time of adjudication (interview).
SusieQQQ
Well-Known Member
My understanding is that it's ok to be in adjustment pending status at interview. I think what is maybe (?) confusing the issue is that normally LPR spouse can only file when petition approved and PD current, so there is probably not much time if any spent on adjustment pending status. The situation that OP is envisaging, likely 2 or more years with the only status as adjustment pending, is not normal at all. The big problem that would arise is if for any reason the spouse is denied, that the entire time that had been spent as adjustment pending would turn into overstay, and spouse would have to leave the country and do CP anyway. Any unintentional violation of status that wouldn't be a problem for USC spouse could lead to denial for LPR spouse. If spouse is able to extend L status that would probably be best option, it's dual intent and it's a proper status.