I130 approved but current visa will expire before priority date is u

[gemmavgraham]

Hi everyone...

This is a little complicated, but I will try and explain as simply as possible.

In April 2007, my father (a green card holder) filed an I130 for me as I was over 21 at the time he applied for his. At that time, I was on a student visa in the US.

That visa expired and so dutifully I left the country. During my time outside the country, my boyfriend (a US citizen) proposed to me. I had pretty much given up on the I130, and so we started filing for me again.

I arrived in the US in July of this year on my K1 visa and we are getting married on August 20th, however, two days after entering the country, I received notice that my I130 from my dad's application has now been approved!!

Obviously, the I130 green card has a few more benefits, such as being an actual green card rather than the 2 year conditional green card I would get with the K1 where I would need to apply for travel permission etc when I want to visit my family in Europe. Also, my father can easily satisfy the requirements for the affidavit of support, whereas my husband (to-be) has just been laid off.

So basically, my I130 priority date is not up yet... it looks like it will be about 3-4 months before that date comes up and I can apply for my adjustment of status. But during those 3 months, my I-94 will have expired.

So my questions are:

1. Can I remain legally in the US while I am waiting for my priority date to come up so I can apply for the adjustment of status? (even if my I94 expires)

2. If yes to above, can I apply for employment authorization now?

3. I was unmarried at the time of application, which puts me as top priority... will getting married make this a problem? We have already had our ceremony and really want to make it legal as soon as possible (currently we have an appointment for August 20th)

Any help on any or all of the questions would be greatly appreciated!!!
Thank you,
Gemma

 

[TheRealCanadian]

Can I remain legally in the US while I am waiting for my priority date to come up so I can apply for the adjustment of status? (even if my I94 expires)

No. And you are not eligible to file an I-485 based on your father's I-130 if you are out of status. I also don't know where you get the idea your PD will become current in 3-4 months; FB2B priority dates are in 2001 or earlier.

3. I was unmarried at the time of application, which puts me as top priority... will getting married make this a problem? We have already had our ceremony and really want to make it legal as soon as possible (currently we have an appointment for August 20th)

Getting married canceled your father's petition.

File based on marriage to a US citizen.

 

[gemmavgraham]

No. And you are not eligible to file an I-485 based on your father's I-130 if you are out of status. I also don't know where you get the idea your PD will become current in 3-4 months; FB2B priority dates are in 2001 or earlier.



Getting married canceled your father's petition.

File based on marriage to a US citizen.

I am not out of status, I left the US before my visa expired and I am currently in the US legally under a K1 visa.

Also, I am not yet married, which is why I am trying to determine my options as soon as possible.

I also think it is very strange that my I130 was approved the day after my K1 visa was filed in the US... it made me think that my two applications had somehow found each other in the system? Although I know it's very unlikely that two government offices would communicate with each other, so it is probably just a coincidence...

 

[Al Southner]

I am not out of status, I left the US before my visa expired and I am currently in the US legally under a K1 visa.

Also, I am not yet married, which is why I am trying to determine my options as soon as possible.

I also think it is very strange that my I130 was approved the day after my K1 visa was filed in the US... it made me think that my two applications had somehow found each other in the system? Although I know it's very unlikely that two government offices would communicate with each other, so it is probably just a coincidence...

Don't you have to be married to the sponsor of your K1 visa 90 days upon arriving in the US? Once you get married, your 1-130 is dead as RC explained. Do you really need a 10yr card or do you need the right and ability to live and work in the US? I believe you can achieve both with any type of greencard. However, once the 90 days passes without you having married your US citizen, then you are out of luck and have to leave the US.

 

[gemmavgraham]

Don't you have to be married to the sponsor of your K1 visa 90 days upon arriving in the US? Once you get married, your 1-130 is dead as RC explained. Do you really need a 10yr card or do you need the right and ability to live and work in the US? I believe you can achieve both with any type of greencard. However, once the 90 days passes without you having married your US citizen, then you are out of luck and have to leave the US.

So should I leave the marriage as late as possible and hope the priority date comes up?

The 10 year green card is a matter of ease since we do not have to remember to petition to have conditional status removed as we do with the marriage based green card.
Also, my fiance cannot satisfy the affidavit of support as he has now been laid off, whereas my father can... can he provide the affidavit of support for my marriage based AOS?

Thanks for all the help everyone, just making sure I can get this done the right way

 

[VisaNutz]

TRC has already mentioned that the current PD for FB2B category is from 2001. How do you figure it will take only 3-4 months?

 

[gemmavgraham]

TRC has already mentioned that the current PD for FB2B category is from 2001. How do you figure it will take only 3-4 months?

My I130 is family-based 1st priority (My father applied for me - unmarried daughter over 21) which shows at 2003... but even so, I know it would be very optimistic for it to come up so soon.

But regardless of that, I will still be marrying my fiance which everyone's advice has shown will null the I130 application anyway, so I will do the AOS after we are married from my current K1 visa.

My only concern is the affidavit of support, but I think I found that my father can still be the financial sponsor on that one.

Thank you everyone!!! This is a great forum!

 

[VisaNutz]

My I130 is family-based 1st priority (My father applied for me - unmarried daughter over 21) which shows at 2003... but even so, I know it would be very optimistic for it to come up so soon.

But regardless of that, I will still be marrying my fiance which everyone's advice has shown will null the I130 application anyway, so I will do the AOS after we are married from my current K1 visa.

My only concern is the affidavit of support, but I think I found that my father can still be the financial sponsor on that one.

Thank you everyone!!! This is a great forum!

Family based first category is for Unmarried Sons and Daughters (over 21) of US Citizens. In your first post, you mentioned your father is an LPR (GC Holder). If that is correct, you don't belong to this category.

You belong to 2nd preference category. Second preference category also has two sections - 2A (Spouse and unmarried under 21 children of LPR), and 2B (Unmarried over 21 sons/daughters of LPR). So, your preference category is FB2B. As per Aug 09 visa bulletin, the current PD is 01 May 2001 or earlier.

Either way, it doesn't matter since you are going to get married and do AOS.