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I-130, I-485, and B1/B2

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  • I-130, I-485, and B1/B2

    I am a USC and my wife is a Taiwan citizen, and we have 2 children (each have both US and TW passports). We are moving permanently back to California in August. 10 years ago my wife had a green card, that we got filing an I-130 in Taiwan, but then we never did move back, and they kept hassling her at the border since, from the US point of view, she was supposed to be "living in USA with intent to immigrate" and taking long trips abroad all the time. So we abandoned that green card. But that is I think just back story. Let me know if I have the current situation right.

    There's no point in applying locally with an I-130, for 2 reasons. First, at least in our current country, there is no "locally" anymore, and it just goes to the Chicago Lockbox. Second, that takes at least 5 months, and we don't have 5 months.

    So now she just has to go in using her existing long term B1/B2. Except that is problematic for 2 reasons. First, they may ask her if she's married, and where is her husband and family, and she should tell the truth, that they're already in the USA. (A friend said its easier if you all come in together and get off the plane/boat together, and somehow apply on the spot. Not sure I understand that but for various reasons we were going to arrive separately, me and the kids ahead of her as a scouting party.) I mean the tourist (and business) visa is supposed to be not for joining family.

    Second, if she does get admitted on B1/B2, ok we can file I-130 and I-485 and apply for change of status. And we better do that immediately, because, well processing time at San Francisco may be more than 5 months. And if its more than 6 months, she's overstayed her B1/B2. And if she just makes a visa run, that may abandon the I-130 or I-485 application. And if she applies for some kind of extension, well maybe that is the right answer but I still worry.

    Do I have that about right? What on earth is the best way to handle this?

  • #2
    I think she won't be able to enter on her tourist visa anymore even though it has not expired. They have a record that she is married, and that once she was a green card holder. They will ask her why she abandoned it, and check if she is still married. They won't let her in this way. So you guys should file from Taiwan and just wait out that 5 months. I don't know what makes it so urgent for only 5 months, but you guys should have done this then 4 months ago, so you'd be almost done by now. But seriously, I think she'll have very small chance of being able to enter the country on a tourist visa and not "just because she is married to a US citizen" but because she has showed "intent to immigrate" in the past by obtaining a green card. Good luck!

    Ps: the overstay would not be an issue since she would be in a "process" and overstays are forgiven for spouses of US citizens...getting in the country is what is slim...
    Ability may get you to the top, but it takes character to keep you there.


    • #3
      If you get in with the B2, then you can file, but you can be denied for fraud. In any event there will probably be a lookout for her, so you probably will not get in on the B2 unless you lie and say you are just visiting. Most likely you will be placed in removal proceedings and you will have to apply for lpr status with the immigration judge.


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