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Thread: Approved i-130. AOS Question

  1. #1
    My i-130 petetion has been approved that I filed on behalf of my brother. He was in his country when it got approved. He is now visiting me here in the USA. Can he apply for AOS while being in this country? Will he be granted an EAD based on pending AOS in the future. He is here with his wife. Can she also get an EAD based on her husband's pending AOS? They have two kids back home staying with their grandparents. I do not see any possibilities bringing them here soon. Please suggest if there is any? What would you suggest - whether they should wait for their interview in their own country which might take another 10-12 years (Sigh!!!) or go for an AOS if possible? Please respond if you have similar experience or knowledge on this regard.

  2. #2
    My i-130 petetion has been approved that I filed on behalf of my brother. He was in his country when it got approved. He is now visiting me here in the USA. Can he apply for AOS while being in this country? Will he be granted an EAD based on pending AOS in the future. He is here with his wife. Can she also get an EAD based on her husband's pending AOS? They have two kids back home staying with their grandparents. I do not see any possibilities bringing them here soon. Please suggest if there is any? What would you suggest - whether they should wait for their interview in their own country which might take another 10-12 years (Sigh!!!) or go for an AOS if possible? Please respond if you have similar experience or knowledge on this regard.

  3. #3
    Hi SA,

    it is my understanding that your brother can't apply for AOS (or have consular processing)before his priority date becomes current.

    Some people on this board have been saying that it is possible to apply for AOS even though PD is not current. If it is, I would like to learn on what basis.

  4. #4
    Aneri,

    I heard from friends that you can file for AOS. However, I wanted to learn from credible sources like you folks who know about immigration law.

    Anyone if you know about this, please respond. I will greatly apprecite.

  5. #5
    Cannot apply for AOS unless priority date is current.

  6. #6

  7. #7
    It is my understanding that even if the I-130 is approved, your brother cannot file for AOS. They could see it as visa fraud in that his intention when entering the US was not as a tourist/visitor but with the intent to immigrate. In fact, visiting the US is "discouraged" after the I-130 is approved. They can actually deny entry if they come to find out, through questioning, that the I-130 is filed and approved.

    I'd seek an attorney in this matter, and definately obtain a second opinion on it, if you really want to do the AOS.

    The last thing you want to do is harm your case or delay the process in any way.

  8. #8
    Happy User,
    Thanks for posting your comment. Yes, the visa officer knew that his I-130 had been already approved. Yet, the officer gave him a visitor visa saying that my brother could immigrate to US in the future, but he needed to return to his country after the purpose of the visit. This tells me that even knowing your intention to live in US in the future, the visa officer may grant you non-immigrant visa.

  9. #9
    There is no law that would prevent a beneficiry of an I-130 (filed or approved) from visting the US. The beneficiary has to convice IO at the consulate (if asking for visa) and at POE that he/she plans to return to home country after a visit. That would be more difficult if the beneficiary is immediate relativ (child, spouse or parent) of USC, since the immigrant visa number is immediately available to them, and they can file for AOS once they are in the US.

    I am sure your brother can't apply for AOS before the priority date becomes current. IO knows that too.

    "Filing and approval of an I-130 is only the first step in helping a relative immigrate to the United States. Eligible family members must wait until there is a visa number available before they can apply for an immigrant visa or adjustment of status to a lawful permanent resident. " from USCIS.gov

  10. #10
    It is my understanding that AOS cannot be processed in this case because the beneficiary entered the US on a tourist Visa. The beneficiary has to return to their native country for consular processing, regardless of any I-130 priority date. Just because the beneficiary happens to be in the US when the I-130 is approved, doesn't mean they can switch from consular processing to AOS.

    Yes, the beneficiary can visit the US, regardless the status of I-130. The key is, as stated, the POE officer or IO at consulate must believe you are going to return home after the visit.

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