USC filing I-130 for wife on B-1, use AOS or CP? Please help!

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got_gc_in_2002

Registered Users (C)
I have been in the US since 1994, F1, H1, GC and now have become a USC on April 17, 2007.

We got married in December 2003, in India.

My wife has been travelling to US for short stays on a 10 year B1/B2 she obtained in the year 2000. She has not yet over-stayed in the US.

I am getting ready to file for a I-130 for her for the first time. She is currently in the US on Maternity leave from her job in the UK, she entered in Feb 2007 on her B1/B2 and the I-94 is valid till July 2007.

Ideally I would like to file her I-130, I-485 (AOS) together.

My question is how much of a risk am I taking by going through AOS as against CP in London.

Will very much appreciate any recommendations I can get.

Thanks and regards.
 
A B1/B2 visa does not allow dual intent, so filing I-485 for her while she is in the US can trigger some extra questioning during the interview. I'm not sure its such a big deal, but as a minimum you want to make sure you're not filing the AOS just a couple days after she arrived. Make it defend-able along the lines "we just decided to do this" after a reasonable stay on the visitor visa.

If you opt for the CP route, your wife may have problems continuing to use her visitor visa while the I-130 & CP are being processed. There is a question on the I-94 which requires someone to declare if there has ever been an immigrant petition submitted on their behalf. Truthfully answering 'yes' may cause her to be denied entry on the grounds that she is an intending immigrant. Basically the general consensus is once you submit I-130 petition, you must wait for it to be approved before you can reliably travel to the US.
 
Thanks for your reply.

My second question is, if I go ahead and file I-130 and I-485 (AOS) simultaneously. Will there be any negative impact on the I-130?

If they don't like me filing for the AOS as my wife is visiting on B1/B2 (I-94), then can I later on just change or refile the I-485 using the existing I-130 and ask for Consular processing?

Thanks,
 
got_gc_in_2002 said:
Thanks for your reply.

My second question is, if I go ahead and file I-130 and I-485 (AOS) simultaneously. Will there be any negative impact on the I-130?

If they don't like me filing for the AOS as my wife is visiting on B1/B2 (I-94), then can I later on just change or refile the I-485 using the existing I-130 and ask for Consular processing?

Thanks,
Click to expand...

There's no negative impact filing simultaneously - the issue is how quickly you file after the beneficiary arrives in the country on a non-immigrant visa. There's no hard and fast rules, but I would think a month or two should be sufficient.
 
while you think it's a myth, a lot of attorneys follow this precautionary principle.

It is important to realize that an adjustment of status is discretionary. It is possible for a person who is technically eligible for an adjustment of status to still be denied based upon the exercise of discretion by the USCIS. The most common reason why an adjustment of status is denied is where the alien abused the non-immigrant process.

Under the 30-60-90 day rule, a person who applies for a change of visa status (including adjustment of status) within 30 days of entering the U.S. is presumed to have acted in bad faith. In other words, the USCIS will presume that such a person had preconceived intent to make the change before entering the U.S. and used an easier visa to avoid the normal screening process conducted by U.S. consulates abroad.

If the adjustment of status application is made between 30 to 60 days of entering the U.S., there is no presumption made. However, there will be a strong suspicion that the person acted in bad faith and heightened scrutiny shall apply.

If the adjustment of status application is made after 60 days of entering the U.S., the presumption will be that the person acted in good faith. However, previous visa history will nevertheless be examined to determine whether any abuses of the immigration process may have occurred in the past.

How does this all matter for international couples? Should you enter the U.S. on, for example, a tourist visa, and meet the love of your life, I recommend that you wait AT LEAST 60 days from the date of entry into the U.S. before getting MARRIED. Even though you never had the intention marry when you entered the U.S. on a VWP or tourist visa, it is the appearance of pre-conceived intent that will trigger USCIS scrutiny. To play it safe, always wait AT LEAST 60 days from the date of entry to marry and apply for lawful permanent residence through Adjustment of Status.
Click to expand...

http://www.msclaw.com/index.php?mact=News,cntnt01,detail,0&cntnt01articleid=3&cntnt01returnid=71
 
Lawyers may use it, but USCIS doesn't. There is no such statute of limitations or any mention of 30, 60 or 90 days in any of the USCIS handbooks for Interviewing officers.
 
There was a landmark court case in late 70s regarding intent. According to that, rapid course of events could cause the denial of petition filed immediately after entry.
The court case is for change of status, but the same should be applicable to AOS too.

Searching with Seihoon Levy on google will tell the detail.

What is too early is difficult to say, so it's better go conservative.
 
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