Daughter's AOS - BronzeLady, Old Man, anyone?

[Fairplay]

My husband has received notice of his Oath Ceremony - very exciting as we were starting to despair of ever receiving it. We can finally have our "citizenship party"!

This means that our daughter can adjust status to a permanent resident. She has an approved I-130 (child over 21) and the priority date is 1998 which is current as she will move up a category to that of adult child of a citizen. I would appreciate some assistance on determining exactly what forms we need to file for her. We want to submit her application immediately after my husband takes the oath. As I understand it she should submit the following forms:

I-485 (application to register PR)
G-325A (Biographic Info)
I-864 (Affidavit of Support)
I-693 (Medical Examination - has been done)
I-765 (Application for Employment Authorization)
I-131 (Application for Travel Document)

Questions:
1. Can we submit a single check to pay the cost of the 3 applications that have a fee?
2. Is it possible to request that the USCIS expedite the employment authorization, as she already has a job offer which she may lose if it takes 3 months to process?
3. She will need to travel to Ireland to collect personal effects and tie up lose ends - when she left she was only coming to the USA on vacation. Due to unexpected circumstances she extended her stay in the USA to a year. Can she submit the I-131 at a later stage or is it better to submit it with all the other documents?
4. What do we put for her "Current INS Status"? She came here on a visitor visa (has a valid multiple entry visa) and obtained an extension until June 30, 2004. She filed for another extension before the end of June, but obviously hasn't received a decision on this yet. When she completes the I-485 it will show her I-94 as having expired 3 weeks ago. Should she just include a copy of the receipt notice she received after submitting the latest extension request?

Sorry about the lengthy questions, bur will appreciate any help. Hope I will finally be able to reciprocate and help others once our many processes are complete!

[Fairplay]

My husband has received notice of his Oath Ceremony - very exciting as we were starting to despair of ever receiving it. We can finally have our "citizenship party"!

This means that our daughter can adjust status to a permanent resident. She has an approved I-130 (child over 21) and the priority date is 1998 which is current as she will move up a category to that of adult child of a citizen. I would appreciate some assistance on determining exactly what forms we need to file for her. We want to submit her application immediately after my husband takes the oath. As I understand it she should submit the following forms:

I-485 (application to register PR)
G-325A (Biographic Info)
I-864 (Affidavit of Support)
I-693 (Medical Examination - has been done)
I-765 (Application for Employment Authorization)
I-131 (Application for Travel Document)

Questions:
1. Can we submit a single check to pay the cost of the 3 applications that have a fee?
2. Is it possible to request that the USCIS expedite the employment authorization, as she already has a job offer which she may lose if it takes 3 months to process?
3. She will need to travel to Ireland to collect personal effects and tie up lose ends - when she left she was only coming to the USA on vacation. Due to unexpected circumstances she extended her stay in the USA to a year. Can she submit the I-131 at a later stage or is it better to submit it with all the other documents?
4. What do we put for her "Current INS Status"? She came here on a visitor visa (has a valid multiple entry visa) and obtained an extension until June 30, 2004. She filed for another extension before the end of June, but obviously hasn't received a decision on this yet. When she completes the I-485 it will show her I-94 as having expired 3 weeks ago. Should she just include a copy of the receipt notice she received after submitting the latest extension request?

Sorry about the lengthy questions, bur will appreciate any help. Hope I will finally be able to reciprocate and help others once our many processes are complete!

[passingby]

If your daughter out of status? and if so for how long. If she has been out of status for over six months, SHE CAN NOT GO BACK TO IRELAND since she will be subject to the 3 year bar...over a year, she will be subject to 10 year bar.
So she should not go out if this is the case and SHE CAN NOT FILE and I-131 advance parole.

[BronzeLady]

In addition to what passingby said, you cannot file the I-485 package UNTIL SHE RETURNS FROM ANY TRIP SHE MAY MAKE!!!! After you file the I-485 you cannot travel without permission (i.e., without an approved advance parole document). Some offices do emergency employment authorizations documents but they are few and far between. Do not apply for adjustment until you receive another extension. If the extension is denied you will have to file the I-485 packet with the I-485 supplement A (the fee is $1000). Yes, you can submit one check for all of the fees but it is generally best to submit one check for the I-485 & fingerprint fee, one for the I-765 and one for the I-131. That way if there is something wrong with one application and/or fee they do not reject the whole package just the one that has the error.

[Fairplay]

BronzeLady:

I am a little confused. I don't believe my daughter is out of status. She filed for an extension before her I-94 lapsed (3 weeks ago). The extension application was only necessary because of the length of time the USCIS took to do my husband's citizenship interview and oath, because they mislaid his file. If it had been processed at the same time as my citizenship, or within 2 months of mine, the extension would not have been required. I believe in an earlier thread that you advised us to apply for the extension to "buy time" for the I-485 to be processed. It will probably be at least 5 months until she receives a decision on the extension and surely if she has never been out of status, she can file the I-485 now?

My daughter does not intend to travel until after she has submitted the AOS and would wait until she received work authorization and an advanced parole document.

Your advise to submit individual checks for the different forms makes sense - I hadn't thought about the possibility of part of the application being rejected.

[BronzeLady]

Fairplay,

Yes, you can file the application now. If they deny the I-539, though, your daughter will be out of status from the expiration date of the previous extension (NOT from the date of the denial of the new extension). I can't recall offhand but I think you can only get one B-2 extension not to exceed a total entry period of 1 year. If that is the case then she is going to need to file the Supplement A and pay the fee.

[Fairplay]

Does the USCIS ever consider "extenuating circumstances"? For instance an officer at the local office actually apologized to my husband for the delay in his processing - file mislaid. If this hadn't happened, my daughter would not have needed to apply for an extension. As it is, we are only talking about a matter of 3 weeks between her I-94 expiring, and the lodging of her petition. She does have a valid multiple entry visa. Could we "reference" this officer on her application?

[Fairplay]

BronzeLady, an additional question regarding fees. I believe the current fee is $315.00 for an I-485. Is there an additional $70.00 fee for fingerprints?

[BronzeLady]

Yes, it is 315 + 70.

[Mo]

Are there any discretion for USC children over 21 who want to adjust with a previous (180+ days) visa (student) overstay. Do they really deport those individuals? or they find a way for them to adjust?

This is assuming the individual doesnt qualify for the 245(i) act. What happens?

[BronzeLady]

No discretion....either you qualify for 245(i) or you don't.

[Mo]

BronzeLady

What if this person, who's petition has been filed on or before when the 245(i) act was signed, but was not in the country to meet the "physical presence" requirement to be in the US. Can this person still qualify for 245(i)?

My understanding of the 245(i) is, that is was renewed on Dec 20, 2000 - but was extended until April 30, 2001. Does the extension include the "physical presence" condition too?

Please clarify this for me Bronzy!

[Mo]

Quick reference on the 245(i)

2001: The LIFE Act extended the January 14, 1998 deadline of 245(i), until April 30, 2001.

To qualify under 245(i) and/or the LIFE Act:
There is an "alien-based"* reading of 245(i) and the LIFE Act. This means that an individual can "qualify" to file a I-485 adjustment of status application (in the United States), if he/she:

1) has been a beneficiary of an I-130 relative application, filed before April 30, 2001, or

2) has filed for an I-485 adjustment of status application, before April 30, 2001, or

3) has been a beneficiary of an ETA-750 labor certification application, filed before April 30, 2001, or

4) has filed an I-140 immigrant preference application, before April 30, 2001, or

5) was/is/will be the derivative spouse or child of the individual in (1)-(4) above (some restrictions apply).

*Important -- "Alien-based" Reading of 245(i): The "alien-based" interpretation of 245(i) and the LIFE Act means that applications filed before April 30, 2001 [see (1)-(4) above] do not have to be approved. For example, if application ABC was filed before April 30, 2001, and it is denied, the individual can still "qualify" for a future I-485 adjustment of status application based on a subsequent application XYZ. In fact, the application ABC could have been denied or withdrawn. The requirement, however, is that the application had to be "approvable when filed." ["Alien-based" reading, as discussed in April 14, 1999 and June 10, 1999 Memorandums by Robert L. Bach, the INS Executive Associate Commissioner of the Office of Policy and Programs.]

However, in December 2003, an official statement by the US CIS (even though addressing 245(i) in a different context), seems to limit this "alien-based" interpretation of 245(i). According to this statement, it appears that if 245(i) is used for an I-485 adjustment of status application (final step for the immigrant "green card" application), and if it is "properly denied" by the US CIS then, thereafter, 245(i) can no longer be used for subsequent adjustment of status applications. If the I-485 adjustment of status application is withdrawn prior to a denial by the US CIS, then, 245(i) may be used subsequently. In the context of (1)-(5) above, based on this, if 245(i) is used under situation (2), then severe limitations on the 'alien-based' interpretation of 245(i) will occur if the application is denied by the US CIS.

The "alien-based" reading/interpretation of 245(i) has developed over the years, and as above-stated, may continue to change.


Well, I fall under (1), my petition was filed in DEC00, and a year later was approved... but was not physically present when my USC dad filed the I-130 for me, meaning I didnt come to the US until June 2001, few months after the deadlie. I will soon (no idea when) be filing for AOS, can I use 245 (i) to get my AOS approved if I encounter any problems?

[Fairplay]

I am also confused about the 245(i). My husband filed the I-130 for our daughter after she had "aged out" before his I-140 had completed processing. The I-130 was filed in 1998. Our daughter was not in the USA at the time. Between 1998 and 2003 she made a couple of brief visits to the USA, but was not physically present in the country on or during April 2001. Would she really have to pay an addition $1,000.00 fine? As I explained higher up (July 21), there will be only just over 3 weeks between her I-94 expiring and the lodging of her application to adjust status, plus she applied for an extension before it expired. Will the USCIS not take into consideration the fact that she was not able to apply sooner because they mislaid my husband's file, and so his citizenship was delayed by a couple of months?

[Mo]

USCIS is not clear about how an alien should prove the "physical presence" condition when the time comes, there is no specific documents that can be used to qualify for the 245(i).

Has there ever been a case where someone was denied AOS due to lack of "physical presence" proof?