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Thread: Adjustment of Status issues when spouse EWI

  1. #1
    Can someone answer a question having to do with adjustment of status I-130 and when to file when the spouse entered without inspection (EWI)? Someone approached me about helping file papers. I noticed that the person filed I-130 four years ago but did not act on it. They had previously been to a lawyer who advised them not to act on it. This doesn't make sense to me.

    She received the "Notice of Action", form I-797 almost four years ago, 2004--lawyer wouldn't file adjustment of status I-495, telling her INS would deny petition...so they didn't proceed with the petition. Why the lawyer didn't give them good legal advice is beyond me.
    My question is why couldn't she file a K-3 visa; then file form I-495? This shouldn't be so complicated. Please advise?

  2. #2
    Can someone answer a question having to do with adjustment of status I-130 and when to file when the spouse entered without inspection (EWI)? Someone approached me about helping file papers. I noticed that the person filed I-130 four years ago but did not act on it. They had previously been to a lawyer who advised them not to act on it. This doesn't make sense to me.

    She received the "Notice of Action", form I-797 almost four years ago, 2004--lawyer wouldn't file adjustment of status I-495, telling her INS would deny petition...so they didn't proceed with the petition. Why the lawyer didn't give them good legal advice is beyond me.
    My question is why couldn't she file a K-3 visa; then file form I-495? This shouldn't be so complicated. Please advise?

  3. #3
    Form I-130 could never have been filed "before" the marriage.

    Her lawyer was correct that the I-485 would be denied because of the husband's illegal entry.

    Contrary to your belief, K-3 (spouse), just like K-1 (fiancé), the "alien" should be "outside" of the US and get in as a nonimmigrant to expedite the lengthy I-130 process, and eventually apply for AOS (I-485) upon landing.

    Unfortunately, it doesn't apply to this particular case. For sure the husband, aside from entering without inspection, has stayed illegally on US soil for more than a year, where a 10-year bar to reentry applies.

    Your friend's lawyer surely knows what to do - where to send the husband and which waivers to file. Just wish them the best of luck.

  4. #4
    As RN pointed out, marriage first, I-130 second.

    The husband in your story could not adjust status in the USA by filing I-485 (based on info you provided). He needs to leave the USA and get appropriate visa to return.

    K-1 is a fiance visa. K-3 is a spousal visa. "Visa" means approval to seek entry into the USA. Person who is in the USA does not need visa and can adjust status if certain conditions are met. One of the conditions is: legal entry.

    Approved I-130 would eventually result in CR/IR-1 immigrant visa. So, find out what happened with I-130. Has it been approved?

    Approval of I-130 used to take long time, so K-3 non-immigrant visa was "invented". After sending I-130, USC sends a form I-129F. I-129F is approved, beneficiary has an interview in home country, and gets K3 visa. After arrival in the USA, beneficiary files for AOS (since K3 is "only" non-immigrant visa).

    The above is more or less the same as RN wrote, but you seam confused about some basics so I felt it would be good to repeat it...

  5. #5
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Langford:
    First off, She received the Notice of Action I-797 (dated Feb. 2004) which approves I-130 petition and sets aside a visa number for them. The Approval Notice is for "Husband or wife of U.S. Citizen, 201(b) INA" It says:

    "The above petition has been approved. The petition indicates that the person for whom you are petitioning is in the United States and will apply for adjustment of status..." It further states:

    "If the person for whom you are petitioning decides to apply for a visa outside the United States based on this petition, the petitioner should file form I-824 'Application for action on an approved application or petition' with this office to request that we send the petition to the Department of state national visa center NVC."

    So...is filing the I-824 the next course of action to get a K-3 Visa? I presume he will have to wait outside the country until application is approved...

    This is the info that is missing from your response (Aneri). Please advise how to proceed. Thanks in advance. </div></BLOCKQUOTE>

  6. #6
    1. Had any petition (family, employer) been filed on behalf of this guy before April 31, 2001?

    2. So, I-130 has been approved for quite some time. Why they did not acted on it, sent I-824?

    Looks like USCIS expected the husband adjust status in the USA because of their own mistake in the records, the answer on Q1 is yes, or EWI was not disclosed on I-130.

    Approval of I-130 (for IR-1 visa, one gets green card immediately after entering the USA)) used to take years. So, many people have also chosen to file I-129F and go for K3 visa at the same time (immigrant enters as non-immigrant and has to adjust status in the USA). When one already has I-130 approved, it makes no sense to start K3 process since IR-1 visa (based on I-130) is much better option.

    So, yes I would say they should file I-824 to move the petition to NVC which is a stop on the way to the consulate. However, 3 years have passed since the approval and, if nothing has been done in the meantime, USCIS may consider approved I-130 "dead" or expired. That would mean they would have to start the process all over again by filing I-130 (for IR-1 visa) and I-129F (optional) (for K3 visa).... Nowdays it takes about the same time to get the approval of I-130 as for I-129F.

    The next step would be finding out where I-130 is and if it is still "alive". They may start by checking "case status" on USCIS web-side. Remember the info there is not always up to date...

    Any idea why the lawyer did not advice them to go through the consular processing? Anything in his past that would bar him permanently to enter the USA once he leaves? too small chances that the waiver for illegal presence would be approved?

    They need to know what they are getting into before they make the next step.

  7. #7
    No petition filed before 4/31/2001, applicant entered EWI so "bar rule" applies. (six month bar is three years, one year is ten years--"permanent bar"). Applicants told lawyer he arrived US 2003. Filing waiver is risky, I'm curious why you recommend this? instead of waiting for 245 to pass? I do not know why lawyer filed I-130 in the first place and not I-129F?(Maybe he didn't know about it-OR-maybe HE DID advice client to leave country and he refused-I don't know). Lawyer advises against I-495 because of bar rule. Question: what do you think the chances are congress will renew 245 in the future? (I know you don't have a crystal ball, but anyhow)

  8. #8
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Langford:
    Filing waiver is risky, I'm curious why you recommend this? instead of waiting for 245 to pass? </div></BLOCKQUOTE>
    That is the only option at the moment if he wants to legalize his status in the near future...
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">I do not know why lawyer filed I-130 in the first place and not I-129F?? </div></BLOCKQUOTE> One can't file I-129F without I-130. I-130 is the main document.
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Lawyer advises against I-495 because of bar rule. </div></BLOCKQUOTE> Somebody got it wrong. I-485 means a person will adjust status in the USA, while the bar starts only when one leaves the USA. He couldn't adjust status in the USA because he had NO status to adjust from.
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Question: what do you think the chances are congress will renew 245 in the future? </div></BLOCKQUOTE> Have no idea..

  9. #9
    Langford


    It sounds like you are a bit confused in this process and because of this.. how can you help this couple?

    There are lots of cases like this at

    immigrate2us.net

    There are many people that have husbands that were in this same situation and gotten their husband approved without paying a lawyer. follow their steps.. Spouse. etc are posters that have been thru the process.

    YOu must understand the concept that an EWI cannot adjust status on american soil without returning to his home country first and get legal visa to come into usa. This person has a BAR for illegal entry. He has to apply for adjustment of status and be denied for the illegal entry. Once he is denied, then a 601 waiver must be filed to overcome the BAR. Once the waiver is approved... then he can adjust status and come back to america.

    NO WAY AROUND THIS. period.

    No new amnesty is in the works.. Not likely either, all this backlog is due to that last 245 amnesty.


    The sooner he returns and they make arragngements, the sooner he will come back. Right now he is deportable if picked up and will be placed in detainment until he is removed.

  10. #10
    Just please allow me to straighten out the following:

    1) This is a "discussion board" not a source of "legal advice" (refer to Terms of Service).

    2) There are 30 days in April.

    3) 245(i) not just 245.

    4) I-485 not I-495.

    5) I-601 not 801 (waiver).

    6) An AOS plus I-601 "cannot" be filed at the US Consulate, but rather, it's I-824 (if previously approved I-130 is still valid), NVC, then Consular Visa process (IR-1) with I-601, or I-129F (K-3) with I-601 is yet another option.

    Ok, go on discussing.

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