LPR/N400 Issue

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xuscbs

Registered Users (C)
Hello,

I am a LPR currently in the process of filing for citizenship (N400). My FP is scheduled for sometime next month. I am located in the mid west.

I have a wife who is a legal resident in the UK. We have been married for 3 years. We have a 2 year old who was born in the US. Its been tough (not to say expensive) being on opposite ends of the Atlantic. I try to visit every month and they also visit too. We are currently expecting another baby in a few weeks, and my wife is here in the US for the delivery. She is covered under the medical insurance provided by my employer. Her stay in the US expires in Mar 2011.

My issue is this.

I am in the process of filing for citizenship, as i mentioned earlier. Originally, i had hoped that since i started my N400 process in Sept this year, the process would have been completed before my wife's current stay in the US expires in Mar 2011. I could then file for an adjustment of status for her based on marriage to a US citizen, and she wouldn't have to go back to the UK.

But my job has recently transfered me to another state, and the move will result in a DO change. This i understand typically results in a 3-4 month delay. This could mean that my citizenship process will not be completed by March next year. And she will have to go back to the UK so that she does not overstay in the US.

My questions are:

1. Although, i will be relocating to another state/DO, i am maintaining my current home until Jan 31st 2011, when the lease expires. Is it a good idea not to change my address with USCIS on the N400 and hope that i am called for an interview before the end of Jan? Or change the address and bear the 3-4 month delay and my wife having to return to the UK (now with 2 kids).

2. Alternatively, can i go ahead and file for an adjustment of status for her now (based on marriage to a LPR), and then just upgrade the AOS application after i get my citizenship? I know that applications based on marriage to a US citizen are usually faster than those based on marriage to LPR.

I seeking opinions and advice on the best course of action. My ultimate objective is best course for my wife not having to return to the UK.

Thank you.
 
Did she enter with a visa, or the visa waiver? Apparently not the visa waiver, since March 2011 is more than 90 days away. But please confirm. That affects her options. If she entered with a visa, what kind of visa?

She is not eligible for adjustment of status based on marriage to an LPR, unless you have filed an I-130 and then waited long enough for your priority date to become current. Apparently you haven't filed an I-130 yet, so it will be after March 2011 when she becomes eligible (unless you become a citizen before that).

I would advise you to change the address right now so the 3-month clock starts ticking ASAP and is completed by February. Given that you're working in another state, and the work is not a temporary assignment after which you'll go back, it's not a good idea to pretend that you're still a resident of the state where your old house is.
 
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Jackolantern,

Thanks. Yes, she entered with a visa, B1/B2 visitor visa.

Does that mean that i cannot file an I-130 while she is here now? And have to wait until march 2011?
 
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According to INA 316(a), the 3 months residence in a USCIS jurisdiction is only a prerequisite to filing and is NOT a prerequisite to naturalization (oath). Some applicants AND USCIS Officers are unclear on that distinction. I have seen reports on this website and others of applicants who have been denied or delayed unnecessarily because of this confusion. Applicants in your position could either be well prepared to immediately challenge any Officer on this point right there at their naturalization interview OR avail themselves of the option afforded by 8 CFR 316.5(b)(4) as a resident in multiple states. Please review the law and regulation to decide how you want to proceed.

Best of luck.
 
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On the stand alone I-130 issue, you can file immediately. If she had entered on the visa waiver, she would only be eligible for adjustment (I-485 concurrent w/I-130) if that application were filed within 90 days from entry and the priority date were current (i.e. visa immediately available as the spouse of a USC in this case). You can file the I-130 now and either file as a spouse of an LPR if it becomes current in time or wait to naturalize. Even if she falls out of status she will be eligible to adjust after you naturalize since she entered on a visa rather than a visa waiver.
 
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Thank you BigJoe5.

I think i understand what you're saying. A few more questions if you dont mind.

What is the significance of a Priority date? If i file the I-130 now, is she likely to get a priority date soon?
Though you say she will still be eligible to file even if she falls out of status, i am very concerned about her falling out of status. I would like to do all i cal to really avoid that.
 
As the spouse of an LPR she would be in the F2A preference category and that requires that the priority date (the actual filing date of the I-130) is "current" on the Visa Bulletin and that she be in lawful status in order to file for adjustment of status. That category is averaging 4 to 8 months from filing date to become current. Google for Visa Bulletin (it is updated monthly). Numbers are available only for applicants whose priority date is earlier than the cut-off date listed, right now it is June 1, 2010 (except Mexico which is March 1, 2010).

The visa for an immediate relative (IR) of a USC is legally "immediately available", therefore, there is no waiting time. Also, for IR's they may file for adjustment as long as they eneterd legally on a nonimmigrant visa (this excludes illegal entry and visa waiver entries). If she falls out of status she may not accumulate 180 days of unlawful presence then depart without adjusting to LPR or she would invoke unlawful presence bars to re-entry. (3 or 10 year bars)

If the priority date becomes current under F2A while she is in status, the I-485 can be filed then upgraded later. If you filed Monday (overnight delivery), it could result in a priority date on Tuesday. It is unlikely that the PD will become current in time to file for adjustment under F2A. But once you naturalize you and she can file concurrent I-130 and I-485.
 
Although it will be just a bit risky, but if she overstays her visa and she has a B2 entry and you file for her as a US citizen then her overstay will be forgiven and she will be able to adjust status. It is just an option because its just few months of overstay.
 
BigJoe5 said:
According to INA 316(a), the 3 months residence in a USCIS jurisdiction is only a prerequisite to filing and is NOT a prerequisite to naturalization (oath). Some applicants AND USCIS Officers are unclear on that distinction. I have seen reports on this website and others of applicants who have been denied or delayed unnecessarily because of this confusion. Applicants in your position could either be well prepared to immediately challenge any Officer on this point right there at their naturalization interview OR avail themselves of the option afforded by 8 CFR 316.5(b)(4) as a resident in multiple states.
Click to expand...

Once the applicant has to get into challenging and appealing, that's going to result in months of delay anyway. It doesn't matter if the applicant is right; that's how USCIS operates and you being right won't undo the delay. Regardless of what the law says, an applicant who moves to a different state during the process needs to expect the delay.
 
xuscbs said:
What is the significance of a Priority date? If i file the I-130 now, is she likely to get a priority date soon?
Click to expand...
The priority date is issued almost immediately. But then you have to wait for them to cross your priority date in the Family 2A category. Currently the cutoff date for F2A is June 1, 2010, which means they are accepting adjustment of status applications only for those with a priority date before this June.

However, I would advise against AOS while you are still a permanent resident, even if your priority date became current. Given that she is married to a permanent resident, has a US citizen child and is about to give birth to another, there is the risk of being denied for entering with immigrant intent (even if she truly intended to leave before her 6-month stay was up, the circumstances still scream of immigrant intent).

They are generally lenient on the immigrant intent issue for spouses of US citizens who file for AOS, but while you are a permanent resident you don't get that lenience.

Did she get the B1/B2 visa while married or engaged to you? They usually reject such visas if the applicant has a US citizen or LPR spouse or fiance.

Though you say she will still be eligible to file even if she falls out of status, i am very concerned about her falling out of status. I would like to do all i cal to really avoid that.
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She would be eligible for AOS after falling out of status only if you become a citizen and they haven't already initiated removal proceedings.
 
Jackolantern,

Yes, she got this latest B1/B2 after we were married. I wrote a letter supporting her application. Prior to that, she applied for, and received 2 previous B1/b2 visas, while were dating/engaged.

Its funny, we have flown into the US together several times, and each time, the IO is always surprised we are living apart, even though married. We came into the US together this past September, and the IO was again surprised that she lived in the UK while i lived here. He said "You guys are living apart?". I answered yes. He then said "So, whats the plan? Are you going to file for her to come here?" To which i responded, "yes, i'm just waiting to become a USC before doing that." He smiled and said "Good idea".
 
It would have been more sensible for you to go to separate immigration lines (you to the citizens/resident, she to the visitors) to avoid raising the eyebrows of the immigration officers. She's been very lucky not to be refused entry. Others haven't been so lucky.
 
BigJoe5 said:
I have seen reports on this website and others of applicants who have been denied or delayed unnecessarily because of this confusion. .
Click to expand...
There is an inherent delay (up to several months) in the USCIS process involving applicants who move to a different district area. Specifically, the delay involves the transfer of physical case files form one DO to another and the potential change in jurisdictional authority. Until USCIS goes to a paperless system and streamlines the process, there will always be delays in cases involving moves during the naturalization process.
 
Hello Xuscbs,

I am in a similar situation as you are in right now. I have received a yellow letter (in the process of N400) and waiting for my interview letter. My wife's I-94 expires in Jan 2011. I also know from this forum that an overstay can be forgiiven only if that person is married to a USC. But won't the immigration officer who will be interviewing a N400 applicant ask questions about the N400 applicant's spouse's status in the US? Just in case the N400 process takes longer and the spouse overstays.. Curious to know..
 
They don't go after overstayed or near-overstayed spouses based on seeing them on the N-400.

They actually used to do that, but some years ago they were pushed to change their policy, as it was scaring away legal immigrants who had illegal family members.

And now that ICE and USCIS are separated, instead of being under the one umbrella called INS, ICE won't know about the illegal spouses from the N-400 unless USCIS forwards the information, which they don't do unless they're also pursuing the applicant him/herself (e.g. the N-400 was denied for fraud and they're seeking to deport the applicant).
 
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Jackolantern said:
They don't go after overstayed or near-overstayed spouses based on seeing them on the N-400.

They actually used to do that, but some years ago they were pushed to change their policy, as it was scaring away legal immigrants who had illegal family members.

And now that ICE and USCIS are separated, instead of being under the one umbrella called INS, ICE won't know about the illegal spouses from the N-400 unless USCIS forwards the information, which they don't do unless they're also pursuing the applicant him/herself (e.g. the N-400 was denied for fraud and they're seeking to deport the applicant).
Click to expand...

Yeah but won't the IO ask the N400 applicant at the time of interview, why he/she let their spouse overstay, knowingly? wouldnt that go against the applicant? Just a thought but I could be wrong.
 
Update:

I have recently completed my naturalization process, and i'm now a US citizen.

I'd like to begin the process of adjusting my wife's status and would appreciate it if someone can list the step by step process for me. As a reminder, my wife is currently in the US with me. She came in on B1/B2 visa and her I-94 states she can remain in the US until March 26th 2011.

From what i gather, i should file an I-130 and I-485. Is the correct?

Thanks..
 
Congratulations friend, here is a summary of forms to file to make your wife a green card holder. Let me know if you have questions, provided you read the write-up summer below.

Your USC Spouse files:

I-130, Petition for Alien Relative (your spouse files this); fee at this time is $355, click to see most current filing fee, download form and instructions.

You (the GC applicant) file:

I-485, Application to Register Permanent Residence or Adjust Status (this is your main application form); fee at this time is $1010, click to see most current filing fee, download form and instructions.
I-693, Report of Medical Examination and Vaccination Record, to be filed with your I-485 (this has to be filled out by your civil surgeon. If you have had the BCG vaccination, your TB test will most probably be positive, so ask for a chest x-ray at the same time to save time if it is not suggested). This will take about 3-4 days and probably cost between $160-220 depending on your doctor, find an approved doctor here. Click to download form and instructions.
I-864, Affidavit of Support, to be filled out by your spouse and/or another sponsor, filed with your I-485. Check instructions to see if you can use the I-864EZ instead, it is shorter. Make sure you qualify for it. Click to download form and instructions.
I-765, Application for Employment Authorization (this is your ‘work permit’ and is optional, although most people file it); fee is $0 if you file with your I-485 or after your I-485 has been received by USCIS, click to download form and instructions.

I-131, Application for Travel Document (this is your advance parole application, if you want to travel before you have your green card in your passport/in your hand, also optional), fee is $0 if you file with your I-485 or after your I-485 has been received by USCIS, click to download form and instructions.

G-325A, Biographic Information. Fill out 2 copies for the applicant and 1 for the USC spouse, 1 for each goes with I-130 and 2nd applicant form goes with I-485. Click to download form and instructions.

Passport photos- You will need about 7 for the applicant and 1 for the USC spouse, get extras in case you mess up.

My suggestions on how to do this:

- Complete the forms online, to enhance clarity because hand-written applications can be a drag on poor writers. Make sure the forms are current or expiry date is acceptable.
- Read the instructions, highlighting what else you need to send along with the form. Make sure you are sending enough documents from each required category.
- Make a list of all these items, and get them together.
- Fill out all the forms, sign and date them.
- Organize each application separately; do not send any original documents other than the forms unless specifically asked to do so.
 
Thank you very much Al Southner. I am beginning to gather the documents together, and may have questions from time to time.

Question: Should i really include form I-131? Even if she has no intention of traveling until the process is complete?
 
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