Here's my situation. Any advice on any of these questions would be greatly appreciated. Thanks....
Background: I am a US citizen. Met my wife in US. Married in April 06. She holds dual citizenship: South Korea and Canada. She has a Korean passport, hasn't lived in Korea for about 20 years. She was in US from Canada on a work permit, which has expired. She already has a SSN, and is currently not working.
I submitted I-130 in July 06 to Vermont. No reply yet.
1) Can I submit form I-765(application for employment authorization) without filing for adjustment of status at the same time? If so, what category would she file under? The instructions don't seem to have a category for her. Our main goal is to get her legally working as soon as possible.
2) We are planning to travel to China and Korea very soon. Anyone see a problem with this, based on submitting I-130 only? I'm not sure she'll be allowed back into the country or if there will be a problem with our current application if she leaves the country.
3) If I submit the I-485(adjustment of status) prior to leaving the US, will that cause a problem for her? I'm not sure she'll be allowed back into the country or if there will be a problem with our current application if she leaves the country.
4) Does anyone have a way to find out why Vermont is so far behind in processing I-130's? They have been stuck on March 12, 2006, since December! The California center is processing August 2006 applications. Every month, their processing date gets updated, but Vermont has not been updated for three months.
I called the 1-800 number last week, and the Rep said there must be a problem with Vermont's dates. She said her supervisor would check into it, and to call back in a couple of days for more info. So of course when I call back, the new Rep tells me that they don't have this info, and the prior Rep gave me the wrong info. Not believing her, I called again and got the same *** answer from another Rep.
Originally posted by jqe: She was in US from Canada on a work permit, which has expired..
Does that mean she is out of status now? If yes, she should not leave the US before she adjust status and receives green card.
quote:
1) Can I submit form I-765(application for employment authorization) without filing for adjustment of status at the same time? ..
No, EAD is tied with the application to adjust status.
quote:
2) We are planning to travel to China and Korea very soon. Anyone see a problem with this, based on submitting I-130 only? I'm not sure she'll be allowed back into the country or if there will be a problem with our current application if she leaves the country...
Yeah, she may not be let back for two reasons: overstay (and possible bar on re-entry) and immigrant intent (I-130 filed) without proper immigrant visa.
quote:
3) If I submit the I-485(adjustment of status) prior to leaving the US, will that cause a problem for her?...
If I-485 is pending, one needs Advance Parole (AP)to be able to return to the US, otherwise I-485 is considered abandoned. Even with the AP, one has to be admissable (no overstay, illegal work, criminal record...) to be allowed to enter the US.
If she is not out of status (what kind of work permit she had?), file for adjustment of status and AP if she wants to travel outside the US. Only with the AP in hands, she can go. Everything else is a huge risk, since she is obviously has an immigrant intent but not an immigrant visa.
What confused me is why you didn't file the I-485 (and I-765 for employment authorization and I-131 for travel purpose) at the same time you file for I-130?
aneri, I don't know about criminal record, but I don't think its a set rule that having overstayed or performing illegal work will cause the POE officer to deny entry of an AOS applicant with AP. I have seen it both way (more resulting in admission).
Originally posted by marmaduk: aneri, I don't know about criminal record, but I don't think its a set rule that having overstayed or performing illegal work will cause the POE officer to deny entry of an AOS applicant with AP. I have seen it both way (more resulting in admission).
There is a warning on AP itself saying something like "don't use if you violated .." refering to illegal presence etc. A person who overstayed and has a bar is not admissable, with or without AP. I don't know about the cases you've seen (not saying it hasn't happened).
"Before you apply for an advance parole document, read this travel warning carefully.
-If you have been unlawfully present in the United States for more than 180 days but less than one year and you leave before removal proceedings are started against you, you may be inadmissible for three years from the date of departure. -If you have been unlawfully present in the United States for one year or more, you may be inadmissible for ten years fromthe date of departure regardless of whether you left before,during or after removal proceedings. -Although advance parole may allow you to return to the United States, your departure may trigger the three-or ten-year bar, if you accrued more than 180 days of unlawful presence BEFORE the date you were considered to be in a period of authorized stay. -Therefore, if you apply for adjustment of status after you return to the United States, resume an adjustment application that was pending before you left, or return to a status that requires you to establish that you are not inadmissible, you will need to apply for and receive awaiver of inadmissibility before your adjustment application may be approved or your status continued."
Most of the cases I have seen(if not all) is in conjuction where one has lost employment/student status, overstayed and found employment again or get married with USC. They utilized AP while their AOS is pending and was granted admission.
Not saying that ones should try it. I agree that it's not prudent to risk it to chances or to whatever mood the POE officer is in.
Visa Waiver has a time limit and doesn't translate to indefinite stay. Also, in earlier post you stated that your wife comes from Canada on work permit that has already expired. Won't that translate to her status now as being an overstay just like aneri asked? An overstay is an immigration violation, and she has no legal status to remained in the USA.
Or are you saying she went back to Canada after her work visa expired and now back in the USA under Visa Waiver?
My wife quit her US job before the work permit expired. We have been back and forth together to Canada a couple of times since then. When we cross the border, we get the okay to proceed from the border guards in Canada and US. I don't know they document that she left/came into US from Canada. Our assumption is that it's okay since she's married to US citizen and did not enter country illegally.
If that's the case then she's of valid legal status, with no overstay incurred. Should be a pretty easy case to approve. Is there a reason though, why the I-485 is not filed in the same time with the I-130?
Technically, she can still enter the USA after the China/Korea trip by utilizing the very same Visa Waiver, but the presence of a pending I-130, signify immigration intent which could jeopardize her entry under VWP. On the other hand, entering from Canada should exposed her to this problem as well, yet you've been able to do it multiple times.
A problem with filing I-485 now is that you've to have in your possession an approved AP (I-131) before you can travel (which might not happen if your pending travel date is very near), otherwise, it'll render the whole process invalid and you've to start over again.
I realize now that I should have sent both applications together. We didn't do the I-485 at the same time because there were too many things that needed to be gathered before submitting, thus slowing down the process of submitting the I-130. My plan is now to submit the I-485 along with the I-130, letting them know that the I-130 was previously submitted. I saw this from a lawyer's Q&A on another web site. But we'll probably submit after we return from our trip.
I get the impression from my research that we don't need to have an I-131 at this time. She doesn't have a visa number yet, and we haven't submitted the I-485. It's almost like she is in limbo in the US, basically no status since the I-130 is still pending and no I-485 submitted yet.
By the way, what is VWP?
Marmaduk, thanks for your postings. I find them informative.
She's not in limbo in the US. Her status is of a visitor, under the VWP (Visa Waiver Program).
And your derived conclusion is not wrong. Because she hasn't file I-485, she's not an AOS applicant, and she wouldn't need the I-131 out of fear of abandoning the AOS process. Problem is, she has an I-130 already on file, which signify immigrant intent. A POE officer could deny her entry (under VWP) based on that ground alone.
IMHO, I would not worry about it and leave for your trip and re-entered with VWP. You said she has made several trips to Canada while the I-130 is pending and haven't encountered difficulty. If you want to be more cautious, you could arrange so you'll return your trip via Canada and take the same entry point to the USA.
She's been in the US several years, not sure how many overall. She was legal when I met her in January 2006 since she had a work permit/visa when working for a Fortune 500 company. The permit expired shortly thereafter and she had already quit her job.
We went to Canada and came into the US during the summer of 2006. July/August timeframe. When the US border guards ask for the purpose of the visit, we tell them we're married and she's going to my home. They never question this, enter her name/address into a computer, etc. So far, crossing the border hasn't been a hassle at all(except for waiting in the long line of cars).
I'll have to second aneri's suggestion. With the latest piece of information of July/August 2006 entry, it does appear that she has incurred overstay time. My earlier statement was based on the assumption that she has come and goes multiple time in 2006, so she must have been in valid VWP status, but it just didn't occur to me that everything might have happened in earlier part of 2006.
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