I am the British (Scottish) beneficiary (wife) my husband (US Citizen) is the applicant and we have applied for the I-130 visa at the end of February 2010. We received the I-797C Notice of Action date of receipt 1st March, Date of notice 8th March 2010. We did not apply for the green card (I-485) right away as we simply could not afford to at the time.
As my visa waiver expiration date is coming up on May 6th 2010 we were concerned if I had to go back to the UK would it affect my I-130 application? and what the potential was for me being able to stay in the US till we applied for the I-485 in 2-3 months from now.
I arranged an appointment at the Immigration office to discuss this matter with an interviewer and advised the gentleman of our situation:-
We applied for I-130 in late April 2010 (received date March 1st 2010 – I-797C Notice of Action
notice date March 8th 2010)
We got married March 6th 2009 (showed copy of our Marriage Certificate to the interviewer)
I came in to the country on a 90 day Visa Waiver dated February 5th 2010 until May 6th 2010
We did not apply for the I-485 “Green Card” concurrently with the I-130 due to financial reasons but would be doing so in the next 2-3 months
My Visa Waiver as stated runs out on the 6th May 2010 and I asked these questions:
What is the likelihood of me being able to stay beyond the 6th May 2010 (visa waiver) in order to
stay with my husband and apply for the I-485 when we are in fact able to afford to pay for it?
If I do have to return to the UK before the visa waiver runs out on 6th May 2010 does it affect my
I-130 application in any way?
When we do apply for the I-485 will there be any problems you can foresee with our initial I-130 application or do we just submit the I-797C Notice of Action form (copy) along with our I-485 application? And do I have to be in the US or in the UK when we apply for it?
The interviewer advised me of these points:
Visa Waiver is only for 90 days and sometimes people do stay beyond the 90th day illegally having come into the country with the intention of getting married and applying for the I-485 “Green Card.”
To which I replied yes I understand that and so I should return to the UK then?
He then stated there can sometime be a problem with interviewing if the beneficiary (the applicants spouse) is out of the country if you are intending on applying for the I-485, and said for ease we should have applied for the I-485 concurrently with the I-130, however if we apply for the I-485 and submit a copy of the I-797C Notice of Action form along with the I-485 there should be no issue.
He then contacted a colleague by phone to discuss the matter.
He advised her that my passport showed I had been in and out of the country never overstaying my
welcome on a visa waiver for the past couple years and that I had been married over a year and did not apply right away when I arrived in the US on Feb 5th 2010, for the I-130. He also advised her that my I-797C Notice of Action form showed the I-130 was received on March 1st 2010, and repeated all I had told him to her.
He then came off the phone and discussed with me that she was also an interviewer like him dealing with such cases as this and that in their opinion we should just apply for the I-485 and enclose a copy of the I-797C Notice of Action form when we have the money to apply in a couple of months.
He then said that since I have evidence of coming into and out of the country (as per my passport) on several occasions over the last few years, and since we were married over a year ago and have applied only recently for the I-130 are applying soon for the I-485, that he and the other interviewer do not believe there to be an issue in me staying beyond the visa waiver 90th day of May 6th 2010 in order to apply for the I-485 at a later date, as long as we send a copy of the I-797C Notice of Action form along with our application so they may marry it up with our pending I-130.
He also said that the visa would take on average 5-7 months to process.
I then said in closing, “So bottom line: what does this mean for me? Do I have to go back to the UK and my husband will apply on my behalf for the I-485 while I am there? He said “No”
I responded, “So I am I able to stay in the US even though my visa waiver runs out May 6th 2010?” He said yes.
I repeated several points merely in order to completely confirm that if I were to stay beyond the visa waiver 90th day of May 6th 2010, I should not run into any troubles or issues for my I-130/I-485 “Green Card” application as I would hate to jeopardize my chances of a visa and obviously be separated from my husband any longer than was necessary. I stated this to the interviewer also who understood and believed me to have made the right choice in arranging an interview to confirm this information,
Having discussed this with various people they seem dubious. They agree that while I have applied for the I-130 within my 90day visa (legal entry in the US) I would be overstaying my visa waiver which might be problematic.
However the following I discovered on the USCIS website which states one can certainly apply at a later date for the I-485 but if this oversteps your legitimate reason to be in the US (visa waiver) there doesn't seem to be a definite answer...
"Two Step Process
You still have the option to file your I-485 application any time after your petitioner files a Form I-130, for you, as long as it has not been denied. Generally, you will need to submit a copy of Form I-797, Notice of Action, with your Form I-485, that shows the Form I-130 petition is either pending or approved.
Step One – Your U.S. citizen immediate relative must file the Form I-130 for you and it must be either pending or approved.
Step Two – After you receive Form I-797, Notice of Action, showing that the Form I-130 has either been received by us or approved, then you may file Form I-485. When you file your I-485 application package, you must include a copy of the Form I-130 receipt or approval notice (the Form I-797). "
So what do I do? Do I simply follow the advice of the man at immigration office who doesn't believe there to be an issue with me staying? Or do I return to the UK when my waiver runs out? My husband certainly applied for Step One while I was legitimately and legally in the US on a visa waiver, but now that time is running out and although we will be applying for the I-485 it wont be till about 2 months'ish after my visa waiver runs out...
*Stressed & Confused*
As my visa waiver expiration date is coming up on May 6th 2010 we were concerned if I had to go back to the UK would it affect my I-130 application? and what the potential was for me being able to stay in the US till we applied for the I-485 in 2-3 months from now.
I arranged an appointment at the Immigration office to discuss this matter with an interviewer and advised the gentleman of our situation:-
We applied for I-130 in late April 2010 (received date March 1st 2010 – I-797C Notice of Action
notice date March 8th 2010)
We got married March 6th 2009 (showed copy of our Marriage Certificate to the interviewer)
I came in to the country on a 90 day Visa Waiver dated February 5th 2010 until May 6th 2010
We did not apply for the I-485 “Green Card” concurrently with the I-130 due to financial reasons but would be doing so in the next 2-3 months
My Visa Waiver as stated runs out on the 6th May 2010 and I asked these questions:
What is the likelihood of me being able to stay beyond the 6th May 2010 (visa waiver) in order to
stay with my husband and apply for the I-485 when we are in fact able to afford to pay for it?
If I do have to return to the UK before the visa waiver runs out on 6th May 2010 does it affect my
I-130 application in any way?
When we do apply for the I-485 will there be any problems you can foresee with our initial I-130 application or do we just submit the I-797C Notice of Action form (copy) along with our I-485 application? And do I have to be in the US or in the UK when we apply for it?
The interviewer advised me of these points:
Visa Waiver is only for 90 days and sometimes people do stay beyond the 90th day illegally having come into the country with the intention of getting married and applying for the I-485 “Green Card.”
To which I replied yes I understand that and so I should return to the UK then?
He then stated there can sometime be a problem with interviewing if the beneficiary (the applicants spouse) is out of the country if you are intending on applying for the I-485, and said for ease we should have applied for the I-485 concurrently with the I-130, however if we apply for the I-485 and submit a copy of the I-797C Notice of Action form along with the I-485 there should be no issue.
He then contacted a colleague by phone to discuss the matter.
He advised her that my passport showed I had been in and out of the country never overstaying my
welcome on a visa waiver for the past couple years and that I had been married over a year and did not apply right away when I arrived in the US on Feb 5th 2010, for the I-130. He also advised her that my I-797C Notice of Action form showed the I-130 was received on March 1st 2010, and repeated all I had told him to her.
He then came off the phone and discussed with me that she was also an interviewer like him dealing with such cases as this and that in their opinion we should just apply for the I-485 and enclose a copy of the I-797C Notice of Action form when we have the money to apply in a couple of months.
He then said that since I have evidence of coming into and out of the country (as per my passport) on several occasions over the last few years, and since we were married over a year ago and have applied only recently for the I-130 are applying soon for the I-485, that he and the other interviewer do not believe there to be an issue in me staying beyond the visa waiver 90th day of May 6th 2010 in order to apply for the I-485 at a later date, as long as we send a copy of the I-797C Notice of Action form along with our application so they may marry it up with our pending I-130.
He also said that the visa would take on average 5-7 months to process.
I then said in closing, “So bottom line: what does this mean for me? Do I have to go back to the UK and my husband will apply on my behalf for the I-485 while I am there? He said “No”
I responded, “So I am I able to stay in the US even though my visa waiver runs out May 6th 2010?” He said yes.
I repeated several points merely in order to completely confirm that if I were to stay beyond the visa waiver 90th day of May 6th 2010, I should not run into any troubles or issues for my I-130/I-485 “Green Card” application as I would hate to jeopardize my chances of a visa and obviously be separated from my husband any longer than was necessary. I stated this to the interviewer also who understood and believed me to have made the right choice in arranging an interview to confirm this information,
Having discussed this with various people they seem dubious. They agree that while I have applied for the I-130 within my 90day visa (legal entry in the US) I would be overstaying my visa waiver which might be problematic.
However the following I discovered on the USCIS website which states one can certainly apply at a later date for the I-485 but if this oversteps your legitimate reason to be in the US (visa waiver) there doesn't seem to be a definite answer...
"Two Step Process
You still have the option to file your I-485 application any time after your petitioner files a Form I-130, for you, as long as it has not been denied. Generally, you will need to submit a copy of Form I-797, Notice of Action, with your Form I-485, that shows the Form I-130 petition is either pending or approved.
Step One – Your U.S. citizen immediate relative must file the Form I-130 for you and it must be either pending or approved.
Step Two – After you receive Form I-797, Notice of Action, showing that the Form I-130 has either been received by us or approved, then you may file Form I-485. When you file your I-485 application package, you must include a copy of the Form I-130 receipt or approval notice (the Form I-797). "
So what do I do? Do I simply follow the advice of the man at immigration office who doesn't believe there to be an issue with me staying? Or do I return to the UK when my waiver runs out? My husband certainly applied for Step One while I was legitimately and legally in the US on a visa waiver, but now that time is running out and although we will be applying for the I-485 it wont be till about 2 months'ish after my visa waiver runs out...
*Stressed & Confused*