I-485

J

jennie_dg

Registered Users (C)
Hi,

I have a question regarding a US green card.
I'm a US citizen and my husband is Canadian.

Now I'm trying to sponsor him to get a green card but I'm not sure which way is right.

People are saying differently and I'm confused now.

He can stay with me for a while without a visa because he is Canadian.

Can I file I-130 and his I-485 at the same time to my local INS office while he is the State?

I appreciate your help.

Sincerely,

Jennie
 
Yes, you can...

you can file both I-130 and I-485 simultaneously at your local (not regional) INS office while your husband is still in the States. As a matter of fact, you can only file I-485 if the applicant is currently in the U.S.; otherwise you will have to opt for consular processing, during which time the applicant is often not allowed back in the U.S. until the case is adjudicated (might be different for Canadian citizens, though). You will also need to fill out some other forms with it, such as an Affidavit of Support, and some medical forms etc. check the INS website at www.immigration.gov for more details.

Also, i would recommend that you also simultaneously file applications for an Employment Authorization Document or EAD (form I-765) and Advance Parole or AP (form I-131, Application for Travel Document). The former will allow him to get employment legally (unless you intend to support him:) ), and the latter will allow him to re-enter the u.s. in case he has to travel abroad.

CAVEAT EMPTOR:
i am neither a lawyer nor immigration expert. please consult a qualified immigration attorney before deciding upon any course of action.
 
Thank you!

Hi Pork Chop,

Thank you so much for your reply as well as the additional information.

Some people say that if my husband is on a visitor status, he has to file his I-485 in his country (visitor fraud??),
but the others say that it is OK to do in the States although he is a visitor. I'm kinda confused.

Anyway, thank you for your help and I will get a professional help before taking any actions.

Jennie:)
 
Jennie,

I am not too familiar with FB GC process, but isn't there a special visa catagory for US citizens' spouses - 'K' or something? Couldn't he come into this country using that visa instead of a tourist visa? Then the 'dicey' issue of filing 485 while on a tourist visa doesn't crop up.

Talk to a good FB immigration lawyer as Porks suggests.
 
first of all, I-485 can only be filed if the applicant is physically present in the United States. the matter of applying for a change from non-immigrant status to immigrant status is a different issue, and there is no clear cut answer to that, and depends on each individual's circumstances.

for example, if somebody comes in on a visitor's visa, then start seeking employment within 30 days of entry, that is certainly construed as visa fraud. on the other hand, since your husband is a canadian citizen, he did not enter on any visa, the question of intent at the time of entry is an open one.

also - thinking out aloud - i cannot imagine somebody's genuine marriage being held against them as visa fraud, but with immigration matters, you just cannot speculate.

so your decision to consult an immigration attorney is a very good one.

good luck!
 
Just an FYI : you may want to read http://www.us-immigration-attorney.com/adjustment-of-status.htm which discusses general AOS issues.
Generally anyone admitted under visa waiver program is not eligible, however immidiate relatives of US citizens are exception, so you should be OK there
As far as immigration fraud, it's all about "change of intent". If an alien entered as non-immigrant and immediately applied to become an immigrant, this maybe a reason for a discretionary denial on that basis of "acting in bad faith". INS uses 30/60 days rule there, here's a quote from the link above :
For example, if a person applies for admission into a school or for a change in nonimmigrant status within 30 days of entry, they are presumed to have acted in bad faith. That is, they had the preconceived intent to make the change and they used an easier to obtain visa in order to evade the normal screening process abroad for the visa they really wanted.

If the application occurs between 30 and 60 days after entry, no presumption is made, but there is a strong suspicion that the person may have acted in bad faith. The case will be scrutinized carefully. If the application occurs more than 60 days after entry, the presumption is that the applicant acted in good faith
Again, it is possible that immediate relatives of US citizens are not subject to this rule.
Contacting a lawyer would be a wise thing to do
Good luck
 
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