Adjustment of Status issues when spouse EWI

[aneri]

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...

[Rough Neighbor]

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.

[Langford]

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?

[Langford]

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?