Consular vs. AOStatus

[ssgrip]

Hello, my husband and I are currently outside the US but I reside in the US. I will be filing I-130 this week (US Service Center). In 3 months my husband and I have a trip to the US planned (he holds a B1/B2 visa). We would like to file AOS when we are there. However I am confused as to:
1) if the I-130 is approved before our trip, does he have to do consular processing from his home country, or can he still travel to the US and continue processing there by filing I-485?
2) if the I-130 has not been approved before your trip (only NOA), can he travel to the US and file I-485 from there?

Basically we still want to visit, whether or not we have to do consular processing in his home country or if we can do AOS, but we do not want to break any laws by visiting (2 weeks) on a B1/B2 visa while we are in the immigration process. This is ok right?

[ssgrip]

Hello, my husband and I are currently outside the US but I reside in the US. I will be filing I-130 this week (US Service Center). In 3 months my husband and I have a trip to the US planned (he holds a B1/B2 visa). We would like to file AOS when we are there. However I am confused as to:
1) if the I-130 is approved before our trip, does he have to do consular processing from his home country, or can he still travel to the US and continue processing there by filing I-485?
2) if the I-130 has not been approved before your trip (only NOA), can he travel to the US and file I-485 from there?

Basically we still want to visit, whether or not we have to do consular processing in his home country or if we can do AOS, but we do not want to break any laws by visiting (2 weeks) on a B1/B2 visa while we are in the immigration process. This is ok right?

[aneri]

If I understand this, you are asking about the option to file for AOS in the USA while visiting? And your husband would leave the US after that?

[Okalian]

Just the fact that your husband is entering the US with his wife, whose a USC, proves immigration intent.
Immigration intent + non-immigrant visa =>

[JF2007]

I would do a K-3 visa after you file I-130.

[ssgrip]

In response to aneri: I thought after filing AOS, you can't leave unless you have Adv. Parole, so if we did AOS, no he wasn't planning on leaving. If we decided to just do consular processing, we would just go back to his home country. what do you think?

In response to Okalian: actually, our trip there is really for a visit. We are perfectly happy to do consular processing from home country. My next question is, though, what if I already have NOA of our I-130? We have received the notification of action, so we are in essence declaring intent to immigrate. What do you think?

JF2007: I have been reading that sometimes consular processing is actually faster than the K3 visa process. Do you agree?

[marmaduk]

If you file I-130, your husband face the possibility of being denied entry into the USA 3 months from now. It doesn't matter whether its already approved or not, USCIS already has record of your husband immigration intent.

Considering the situation, I would rather postpone filing I-130 until the scheduled visit is over with. Afterward, you can proceed with Consular Processing or DCF if its available for you.

Alternatively, you can initiate AOS process (I-130, I-485, AP, the whole nine yards), when your husband arrives on the Tourist visa. Do realize this process carry the most risk.

[ssgrip]

Why would he be denied entry?

[marmaduk]

Filling I-130 can be rightfully translated as having immigrant intent, which goes against the very nature of B1/B2 visa.

[aneri]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by ssgrip:
In response to aneri: I thought after filing AOS, you can't leave unless you have Adv. Parole, so if we did AOS, no he wasn't planning on leaving. If we decided to just do consular processing, we would just go back to his home country. what do you think? </div></BLOCKQUOTE> That's correct with AP...I was confused about your plans since you wrote:
<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by ssgrip:
Basically we still want to visit... if we can do AOS, but we do not want to break any laws by visiting (2 weeks) on a B1/B2 visa while we are in the immigration process. This is ok right? </div></BLOCKQUOTE>

so, if a 2 week trip to the US is just for a visit, keep it that way. If I-130 has been filed by that time (showing immigrant intent) there may be some extra questions at the POE. I suggest your husband brings proofs he will indeed return to his country (letter from the employer, lease contract...) to obtain a proper immigrant visa.

With or without the I-130 filed/approved, entering the US on a tourist visa with the intent to stay and adjust status is illegal.

So if the officer at POE suspects that your husband is going to try to adjust status in the US while entering on a tourist visa, IO may deny him entry.

Like marmaduk says, in your situation, I would go for a visit, and after returning, file for an immigrant visa.

[ntfd3]

I personally would never enter with a visa pending! It shows intent and the chances of being returned at the POE are high! Too high to go thru the trouble.

[ssgrip]

So, in filing an I-130 (I have received the NOAction), does immigration somehow forward this info so that any officer at customs in the airports has this info?

We actually prefer to do consular processing and don't mind living outside the US while we do this, but still visit the US from time to time until this is all taken care of. So, if we arrive at the airport do they somehow know we will have an I-130 on file, and would therefore question our intent for visiting?

[marmaduk]

Yes, CBP & USCIS shared information.

Considering I-130 has been filed, if you insist on continuing with the plan for US visitation, then follow aneri's recommendation:
<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">
I suggest your husband brings proofs he will indeed return to his country (letter from the employer, lease contract...) to obtain a proper immigrant visa.
</div></BLOCKQUOTE>

Copy of return ticket, copy of travel itinerary with contact address could also be helpful.

It might seemed over-reacting to do such this, and the CBP officer at the airport could very well just stamp your husband passport and waive him in, but are you willing to take that risk?

[ssgrip]

Yes, good idea. We already have return tickets and everything. Good idea to bring employer letter, etc...He has visited the US about 5 times before, so hopefully no problem. Thanks for the advice...