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  • I-130 Approved

    Hi - has anyone had an I-130 approved (for spouse of U.S. Citizen), but the I-797/Notice of Action indicated that the "person" for whom the petition was approved is "not" eligible to file for AOS?

    I filed I-130 on behalf of my spouse in Dec. 2006; then after receipt of the I-797, we filed concurrently for EAD, AOS in January 2007. My spouse went for his biometrics, received his EAD in April, and on May 8, we had our interview. It went smoothly (from what we could see I guess), nothing uncomfortable or alarming, and the officer said he did not forsee any problem, but that he would have to wait until the I-130 was processed, which seemed right to me.

    Anyway, the I-130 has now been processed, and "approved," but the notice indicates that my spouse is not eligible to apply for AOS. Is this standard language?

    I would like to follow-up and make sure that this approval finds it way back to the office that is pending approval of the AOS and was thinking of mailing a copy of this notice to them; or making an appt. via InfoPass. I will greatly appreciate any feedback anyone could offer me. Thanks in advance.

  • #2
    Originally posted by LeeD:
    Anyway, the I-130 has now been processed, and "approved," but the notice indicates that my spouse is not eligible to apply for AOS. Is this standard language? .
    NO, it is not a standard language.

    How did your husband enter the USA?

    And out of curiosity, why you did not file the I-130/I-485 package together?

    Comment


    • #3
      We filed the other forms later (just a couple of weeks later) because I had interpreted what I read to say that the I-797 confirming receipt of the filed I-130 was required before submitting the I-765 and I-485. Also due to financial reasons - we needed to space out the fees.

      He entered legally (as a Canadian citizen) - - no I-94 but passport page stamped, although we realized this was not a perfect scenario for qualifying; and our case is not that more imperfect than many others, but no one really is a "slam-dunk." And technically, from what I read, he does not qualify for AOS due to overstay. I disclosed every detail on all of our paperwork to be safe, even if it might complicate things. But the officer at the AOS interview said our case looked "straight-forward" so maybe he didn't look close enough, or he was comfortable that it would not matter in the end - who knows.

      Anyway, we prepared ourselves for this type of glitch, but things were going so surprisingly smoothly, so this is disturbing. The notice does imply that our local INS office is a next step for purposes of answering if he is eligible for AOS. I did make an appt. on Info Pass today for the two of us to meet with an officer.

      Comment


      • #4
        maybe no I-94 is what made USCIS confused (like he entered without inspection -> not eligible to adjust status). If it is that, he should be fine as USCIS (mostly) is familiar with the fact that most Canadians don't get I-94.

        Hope everything is solved at the meeting.

        Comment


        • #5
          Thanks Aneri. That's kind of my take on this too and hopefully the local office where the I-485 is already in "post-interview process" thinks so too! And I hope the meeting I scheduled does not shake things up in a bad way. I'm thinking of cancelling and just waiting it out for a little while. (the I-130 was actually transferred to California for a "15-day premium processing" right after our interview, so we think? because of how fast the I-485 interview came through).

          Hopefully, worse case scenario is only that we have to wait alot longer for his green card, perhaps even reapply, or pay a fine. So he won't be able to leave the U.S. and travel, which will **** but we'll live. In the meantime, at least he can work here legally - we can handle renewing his EAD on time.

          I'm hoping I can someday post a favorable outcome and outline of the sequence of our events that might be helpful to others on this board (this board has been of TREMENDOUS help to me, particularly certain members, yourself included). But I don't want to jinx anything until then.

          Comment


          • #6
            When you 1-130 was approved, they sent the information to the National Visa Center. You will then have to wait for a visa to be issued - then he can adjust status. He is not eiligible now because he has not had a visa issued.

            They will only issue the EAD once. He will not be elgible to work in the US. They usually issue the EAD while he waiting to adjust status. This means you have filed the 485 and your case is pending. You cannot file the 485 until the visa is issued. This is why he is not eligible to adjust his status right now.

            Comment


            • #7
              Originally posted by dragonlady:
              When you 1-130 was approved, they sent the information to the National Visa Center. You will then have to wait for a visa to be issued - then he can adjust status. He is not eiligible now because he has not had a visa issued.

              They will only issue the EAD once. He will not be elgible to work in the US. They usually issue the EAD while he waiting to adjust status. This means you have filed the 485 and your case is pending. You cannot file the 485 until the visa is issued. This is why he is not eligible to adjust his status right now.
              dragonlady, what kind of visa would that be and for what purpose if he is already in the USA?
              If you are talking about an immigrant visa number, that's immediately available to him.

              Comment


              • #8
                Hi, i have a case like this. Does anybody know anything else about it?
                thanks
                paulo

                Comment


                • #9
                  Provided the alien was "admitted or paroled after being inspected by an immigration officer" (8 CFR 245), the alien filing for AOS as an immediate relative has ALWAYS a visa number available right away. The infamous visa bulletin does not apply.

                  Provided the alien was admitted or paroled after inspection and the alien is physically present in the U.S., the IR1 alien will be eligible for AOS as a matter of law; admissibility is another, separate question. Note that the I=130 process has nothing to do with admissibility.

                  The note on the approval notice may refer only to one of the categories of ineligible aliens described by the CFR. If what the OP said is true, the alien is eligible for AOS as an immediate relative regardless of the note.

                  This is why most people recommend filing the I-130 along with the rest of the AOS package.

                  The OP should clear the air with some officer at CIS, and maybe consult with an attorney. This forum is not the place to seek legal advice.

                  -THIS IS NOT LEGAL ADVICE-

                  Comment


                  • #10
                    After some search (search word used: "I-130" , under "Family Based GC -Through Marriage or a Relative" ), on immigration portal forum I came accross this thread where participants describe the kind of I-130 approval notice that is similar to what is being inquired about here.

                    Click here to go directly to the immigration portal thread

                    Comment


                    • #11
                      Regardless of the notice, no procedure can be performed contrary to CFR. Here, if the alien was inspected and is physically present in the U.S. as an immediate relative, the alien is eligible for AOS. Admissibility is a different and separate issue.

                      Overstays and unauthorized employment are irrelevant when considering eligibility of IR1 aliens.

                      Maybe the OP should check directly with CIS for peace of mind.

                      -THIS IS NOT LEGAL ADVICE-

                      Comment


                      • #12
                        For all of You:

                        My brother filed I-130 in De. 2000, this I-130 was approved in April 2007, asking him to file I-485, with Chicago Office, he file that in in may they ask for birth certificate, and I-864, which my brother had with the tax papers they have received all the documents. Children had been fingerprinted, they are in this country for the last ten years. What is the delay in this case we can not understand. Visa number is available in this case, USCIS is now processing case of August 2001 in 1st preference.
                        This is a very straight forward case. Once the I-130 is approved you have all the info, you can approve I-485 and mail to the local office for processing.
                        What action my brother should take in this position. appreciate your time.

                        Parents are US Citizens.

                        Comment


                        • #13
                          You stated that he filed I-485 in May,2007, is this correct?
                          And if so, what makes you think there is a delay in processing of his case? (3 months since I-485 filed).
                          I try to understand your reasoning.

                          Comment


                          • #14
                            Hello all - I would like to close this topic since I am the one that started it, and of course relevant to my situation, I am happy to report that subsequent to the I-130 notice I spoke of in my initial post here, and without any further action on our part (I did not keep my appt. with INFOPASS or consult with an attorney - I wanted to give it a little time to work itself out), my husband received his green card. For the record, the whole process took 6 months. I am happy to share details of my timeline and experience with this for anyone who is interested. More importantly, I owe a lot of thanks to many of you who post on this board.

                            Comment


                            • #15
                              Hi LeeD. i have a case in the same situation. Would you share details of your timeline and what happend step by step? I received the same approved I 130 with "not eligible" thing in july 23 07. Thank you...

                              paulo
                              paulovox@hotmail.com

                              Comment

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