Sending I -130, but Turist Visa almost over

B

betolars

Registered Users (C)
Hi

Status:

-I am a U.S. Citizen
-wife entered U.S. on a Turist Visa, permit will expire in about 1 month
-I am applying the I-130 form for my wife

Questions:

- Do I have to request an extension of my wifes tourist permit, once it expires?
- Should I also apply I-485(Adjust Status) or wait for the I-130 to be accepted?



Apreciate all your help
 
1. No because that would require her to have nonimmigrant intent.

2. You should file I-130 and I-485 concurrently. Filing I-130 alone gives her no legal status to stay in the country.
 
Suppose someone enters on a B-2 visa and after "x" days applies for AOS either through marriage, or any other family sponsorship.

If x < 30 = USCIS will accuse the applicant of committing fraud/misrepresentation and the burden of proof lies on the applicant
If 30 < x < 60 = USCIS may accuse the applicant of committing fraud/misrepresentation and the burden of proof lies with the applicant
If 60 < x < 90 = USCIS may accuse the applicant of committing fraud/misrepresentation but the burden of proof will lie with USCIS
If x > 90 = USCIS will most likely not accuse the applicant of committing fraud/misrepresentation

Credits to triple citizen.

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What did she say at the port of entry, that the reason for the trip was?
 
We entered together and the official did not ask for the reason, he actually thought she already had a GC (we have been married for 8 years, 2 sons), but told him we had not done this process yet.

I thought i could send first the I-130 first and that would give me time to get I-864 (affidavit) ready for the I-485, since I just started working (self-employed) and I am having a hard time getting proof of support.
 
You may want to get the help of a lawyer either way, because she still used a non-immigrant visa, with clearly immigrant intent. Which could be construed as fraud by the IO at the interview. You may want to send her back and have her go through Consular Processing instead.
 
sending I-130 will not buy you any time, since it does not provide her with legal status.
 
The I-130 alone will give your wife no benefit and processing with or without it later will take the same time, as a matter of fact it'll be quicker if you submit them both concurrently later.

I do hope your wife didn't intend to enter using the B-2 for the purpose of applying for AOS, then I'd advise you that it would be better for her to go back and apply through consular processing (since you're a family with kids I'm assuming you would both go back and you'd submit your petition at the consulate).

If she developed the desire that she'd like to reside permanently in the US some time during her visit, then first use the 30/60/90 rule outlined above. Note that if you apply for extension of stay, the 30/60/90 day rule starts over again so there's really no point to file for an extension and it looks like your wife has immigrant intent at this point so you shouldn't do it anyway.

If you can't file I-485 for some reason and she falls out of status, this will not be a problem since she is your immediate relative, but she can't leave the US or may be subject to a reentry bar before she receives the GC.

If I were you I'd start looking for an I-864 sponsor immediately if that's holding you from filing for I-485. Note that your assets qualify as well, foreign and domestic. Or, you go back and file through CP which will allow you to take your time.
 
It would be terrible to have to go back and go through CP., We have kids in School etc. And I suppose this takes this would take lots of time.

Since she entered in August 2007 and has her permit til February 2008 I would suppose the 30/60/90 rule applies toward our advantage, is this correct?
 
Yes, it definitely works to your advantage that 5 months have passed since your wife's entry and it's probably unlikely that your wife's intent will be questioned, although you always have to be able to prove she entered with nonimmigrant intent (closer ties to another country). For instance, if you settled in and sent the kids to school in September after your wife entered on a tourist visa in August, I'd question the intent upon entry, if closer ties to another country really still existed. Just be prepared to be questioned about intent.
 
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hello everybody,

this post got my attention,i opened my own thread earlier,but..i wanted to ask what is this 30,60,90 rule?i am sorry but i didn't get it!Does it aply to me?

I entered US also with a tourist visa,first time in feb 2006,and about 5 times since then,last time in december 2006 and then in june 2007 i got married with USC 8 days before my I-94 expired.So i am overstayed now and about to send the package to imigration.Can be interpreted for me as having an intend?Since december 2006 when i last entered an aeroport i left actually the US later on that month for a cruise and again in may 2007 for another cruise but this time when i returned they gave me the same date line on I-94(not another 6 motnhs).

Maybe i worry too much,i know u guys told me it's a pretty straightforward case and the only thing is not leaving the country untill getting a green card,but ..anyway is tthis rule aplying to me?
 
superbunkey, you count the days from when you last affirmed your nonimmigrant intent to the USCIS (e.g. you entered using a tourist visa or you applied for extension of stay) until you apply for AOS. Then, use the 30/60/90 day periods as posted by Praetorian above to determine if you're likely to be accused of fraud/misrepresentation when you entered or extended your stay and if the burden of proof is on you or USCIS.
 
As suggested I did go and see a lawyer.

Basically told me the same thing as the helpful people of this thread:

- Should file I-130 and I-485 (also work and travel permits) concurrently.

- Even though entered with B-2 visa should not be a problem, but of course not to mention GC intent.

- Even though will fall out of status (overstayed) while filing the GC paperwork since she is my immediate relative that should not be a problem also.

- Need a I-864 sponsor

After my meeting have seriously considered hiring a lawyer to do all the paperwork, helps out with all the guesswork. What do you suggest?
And what is the normal cost for this service?, They gave me a quote of about 2k, thought that was expensive.....
 
That is the cheapest average you will find.

Many of us did not use a lawyer, the forms are pretty self-explanatory and there are plenty of good guides to follow and templates to look at. You can always come back here with questions.

This case seems pretty straight forward. Specially because of the length of the marriage and children. Save your money (since you will be spending over $1500 in forms and fees alone).
 
I'm not sure what the lawyer means by "not to mention GC intent." Never volunteer any information that USCIS doesn't ask for, but answer all questions truthfully and make sure your actions and documentation support your answers.
 
I am in the same situation with a bit more drama

I am going to be eligible to apply for naturalization in a couple of months. My wife is here on a visitor visa (B-2), but she has overstayed her visa and hence now an illegal.

We were married in a religious ceremony in our native country, but she did apply for visa as a single person. She came here in July, 2006. We have two children and both of them were born here. My questions are:

1) Should I mention her on my naturalization application? I think I should as our children records are now with state and federal govts.

2) Should I marry her here in USA to get our marriage legal and obtain a marriage certificate? or should I get a marriage certificate from backhome? Getting it from the native country, I think, may cause problem as BCIS may view as misrepresentation of facts on visa application.

3) OR should I get the marriage certificate after I receive my citizenship?

I can really use your expert opinion on these questions. Thanks in advance.
 
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I have been married for almost 10 years now And I remember back then someone told me That I should not re-marry in the U.S. that my original marriage certificate was valid anywhere.
 
tsalman, it's as simple as this, if the local laws where you got married recognize your marriage as having legally married, then you're married. Can you get married again and hide the fact you've been married? Of course, but then you misrepresent facts just as much (or probably worse) as if you correct the mistake in the first place. If I were you I'd get a good lawyer for your case. Perhaps they can help you write a letter explaining the facts about your wife's entry (why she failed to mention her husband in her application, I'm assuming it was a mistake?), or perhaps they can help you write why you're not considering yourself married yet, if in fact that is the case.
 
Thanks folks. I was thinking along the same lines i.e. not to get re-married in U.S. I will more than likely get a lawyer's help/opinion on this.

1) How likely it is that BCIS would dig out my wife's visa application, once she applies to adjust her status.

2) What should I say on my N-400 application about the status of my wife... "Visitor" ??? even though she is out of status now?

Thanks again.
 
1. I think it's quite possible they would look at it to determine if she lawfully entered the country, especially since she entered on a visitor visa and is applying for AOS, but only the USCIS really knows the answer to this. I think some people reported that at the interview, the IO had the entire file of their immigration history in front of him/her (I didn't see exactly what he had for me).

2. I have no experience with this form, but the question asks for current status, which would be ..."out of status."
 
Thanks austriacus. I meant 'Citizenship Application' by form N-400. I could be wrong about form number.

I guess honesty is the best policy in my case. I will get a professional opinion nevertheless. I am just a little concerned about potential catastrophic consequences that may result from a miniscule mistake on my part at this point.
 
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