Resubmitted 485 four times, is my wife permitted to travel by air within the US?

[rjbell3]

I am a natural born US citizen, my wife came here on a tourist visa, her I-94 granting entry until 6-23-14. First I-130 was filed 6-10, for various reasons, the forms and checks have been returned to us 4 times now. We had planned to make a trip to California coupling it with a conference for my work, but I am not sure if she should travel even domestically if she has not had her I-130 change of status approved. I spoke with a USCIS agent in June and asked if she should fly back to Brazil and return on a new I-94 to give us more time to get the process going correctly. I don't remember exactly his answer but it sounded like she would not have to return to Brazil and come back so long as (A) she entered the country legally, which she did and (B) papers were filed or re-filed within 2 weeks after a rejection. However, I asked an agent on the phone today if she could travel by plane within the continental US and he would not say definitively one way or the other. I have read as long as she has committed no crimes and is not wanted for a felony she has no risk of deportation, but I'm not sure if this is true or not. Of course she is not wanted, she is a housewife, not causing any trouble whatsoever. But I want to be 100% sure she would not in any manner be facing deportation if it was discovered her I-94 stamp on her passport is now expired. Is her valid Brazilian passport and US tourist visa granted through 2023 along with copies of our filed I-130/I-485 enough to travel safely without worry? Many thanks for taking the time to review the post and advise us.

[rayb]

If you have proof of an existing Adjustment of Status in process, which could be verified by an ICE or BP agent, your wife is safe to travel domestically. The only time she might be challenged while travelling domestically is if she looks suspicions in an "immigration sort of way" to the Immigration agents that are at most airports. But once challenged and with proof of her Adjustment procedure in process, she would not face being detained.

She should not leave the U.S. until she has her Green Card. There are at least three issues that could bar her from reentry: overstay on original visa; failure to meet documentation requirements; no legal authority to reenter the U.S.

Since you left yourself open to it, I have to suggest that if you have had your I-130 and/or I-485 submittals rejected 4 times, perhaps it is time to have another set of eyes review your work. From my personal experience, the flaws most often resuting in "rejection," as compared to "denial," are:
1. Wrong fee amounts or incompletely written checks
2. Bad signatures or no signatures on forms
3. Expired forms

I would add that "wrong submittal address" is also a likely candidate, but those are forwarded to the correct address about 50% of the time.

--Ray B

I am a natural born US citizen, my wife came here on a tourist visa, her I-94 granting entry until 6-23-14. First I-130 was filed 6-10, for various reasons, the forms and checks have been returned to us 4 times now. We had planned to make a trip to California coupling it with a conference for my work, but I am not sure if she should travel even domestically if she has not had her I-130 change of status approved. I spoke with a USCIS agent in June and asked if she should fly back to Brazil and return on a new I-94 to give us more time to get the process going correctly. I don't remember exactly his answer but it sounded like she would not have to return to Brazil and come back so long as (A) she entered the country legally, which she did and (B) papers were filed or re-filed within 2 weeks after a rejection. However, I asked an agent on the phone today if she could travel by plane within the continental US and he would not say definitively one way or the other. I have read as long as she has committed no crimes and is not wanted for a felony she has no risk of deportation, but I'm not sure if this is true or not. Of course she is not wanted, she is a housewife, not causing any trouble whatsoever. But I want to be 100% sure she would not in any manner be facing deportation if it was discovered her I-94 stamp on her passport is now expired. Is her valid Brazilian passport and US tourist visa granted through 2023 along with copies of our filed I-130/I-485 enough to travel safely without worry? Many thanks for taking the time to review the post and advise us.

[rjbell3]

No, absolutely no plans to leave the US until she has a valid I-131 in place. You are correct, it has been signed in the wrong place, missing check (I misunderstood that I could also file for waiver of I-130 fee), ineligibility for waiver (after USCIS agent advise me I was eligible), and finally rejection of I-485 fee waiver. The USCIS agents have been very helpful when I call and I am trying to save money on a lawyer, one of my employees (a Chinese) advised me that it can be done on my own. It seems like it is easier for a valid green card holder than it is for a US natural born citizen to get a green card for his wife! If it gets rejected again, we will get help from a preparer and/or lawyer. We want to start trying to have kids soon so I don't want any more hang ups. May I file I-130 / I-485 / I-131 now and the I-765 and I-864 later when I have time (I have a very stressful job around every quarter end)? I admit I have been lazy on my tax returns (I am due refunds, don't owe anything) so I don't have all the documentation yet they will want for the I-864. If for some reason she is denied, we are planning to move to Brazil. Do I always have to file I-864? My wife is quite wealthy and multiple property owner in Brazil, she doesn't really need financial support, and if for some reason we divorce she is not planning to try to stay, she will go back home.

[rayb]

RJ,

The Advance Parole (from the I-131) is no guarantee that your wife would be able to reenter the U.S. She has already been a visa overstay, is out of status, etc., and the Advance Parole is no guarantee that they'll let her back through the gate.

Fee waivers are very, very hard to get.

The I-864 has to be included with your submittal, or the processing will stop dead in midstream and you will be given a "drop dead" date to provide the I-864, else you will be facing a denial and loss of fees.

The I-765 and I-131 should both be included together, because the resulting temporary Work Authorization will be together on a "combo" card. The I-765 may take you as much as 5 minutes to complete (it's only one page).

--Ray B

No, absolutely no plans to leave the US until she has a valid I-131 in place. You are correct, it has been signed in the wrong place, missing check (I misunderstood that I could also file for waiver of I-130 fee), ineligibility for waiver (after USCIS agent advise me I was eligible), and finally rejection of I-485 fee waiver. The USCIS agents have been very helpful when I call and I am trying to save money on a lawyer, one of my employees (a Chinese) advised me that it can be done on my own. It seems like it is easier for a valid green card holder than it is for a US natural born citizen to get a green card for his wife! If it gets rejected again, we will get help from a preparer and/or lawyer. We want to start trying to have kids soon so I don't want any more hang ups. May I file I-130 / I-485 / I-131 now and the I-765 and I-864 later when I have time (I have a very stressful job around every quarter end)? I admit I have been lazy on my tax returns (I am due refunds, don't owe anything) so I don't have all the documentation yet they will want for the I-864. If for some reason she is denied, we are planning to move to Brazil. Do I always have to file I-864? My wife is quite wealthy and multiple property owner in Brazil, she doesn't really need financial support, and if for some reason we divorce she is not planning to try to stay, she will go back home.

[rjbell3]

I-864 Question Follow Up

Is it a certainty that she will be denied if I don't file an I-864?

In the instructions it says "You cannot be made to sign a Form 1-864 if you do not want to do so. But if you do not sign the Form I-864, the intending immigrant
may not be able to become a permanent resident in the United States."

Secondly, what if we have a pre-nup agreement where she is already promised 20% of my income for 12 years in the event of divorce (whether she stays in the US or goes back to Brazil)? In the event of divorce would the alimony payments be sufficient to cover my I-864 sponsorship requirements or would I be on the hook for promised alimony PLUS promised support under my I-864 pledge?

[rayb]

If you don't submit an I-864, you will get a Request for Evidence, asking for the I-864 and associated documents. If you don't satisfy the "Request for Evidence," you will receive a denial letter.

If you divorce (real positive attitude you are showing), the immigration sponsorship only applies if she stays in the U.S. (pemanently). Pre-nup agreements must be enforced to be effective.

--Ray B

Is it a certainty that she will be denied if I don't file an I-864?

In the instructions it says "You cannot be made to sign a Form 1-864 if you do not want to do so. But if you do not sign the Form I-864, the intending immigrant
may not be able to become a permanent resident in the United States."

Secondly, what if we have a pre-nup agreement where she is already promised 20% of my income for 12 years in the event of divorce (whether she stays in the US or goes back to Brazil)? In the event of divorce would the alimony payments be sufficient to cover my I-864 sponsorship requirements or would I be on the hook for promised alimony PLUS promised support under my I-864 pledge?

[rjbell3]

Well, I don't mean to sound like I don't have a positive attitude, of course we hope the pre-nup will remain filed away and we will never need to look at it again. I just want to be prudent and understand what I'm signing and how it applies alongside the pre-nup we already agreed to. I don't worry about divorce but one person in my family expressed concerns about marrying a foreign spouse (however, this was before they met my wife).

What can you tell me about listing assets vs. tax returns? It sounds a lot more complicated.

I am reluctant to check the box certifying I have filed taxes the last three years because I haven't yet. I have 2010 and 2013 but not 2011 and 2012. I do not wish to delay the refiling of I-130 / I-485, etc. either. So, it appears I will need to provide the 2013 tax return as asked on the I-864 to include with the immigration forms and file the 2011 and 2012 taxes ASAP in case the USCIS wants to see them.

Thanks much for your insights Ray, my wife and I really appreciate it.

[rayb]

Rjbell,

Everybody who has family in the U.S. hears "concerns" about the family member bringing someone from another country. It was my experience with both my wives (Mexican and Filipino), and most of the family finally concluded that they gained better new family members than the one they warned (me).

Assets must be of a type that is easily converted to cash within a reasonable period of time, at at least 3 times the income deficit. My advice is to avoid using this option, because it is a real quagmire. Over the years, I have worked with people who used actual cash or mutual funds, and one time a piece of business real estate. But if you are talking about home or care equity, or stamp collection, forget it.

You need to get the 2013 tax return done. You can do without earlier returns for this project.

--Ray B

Well, I don't mean to sound like I don't have a positive attitude, of course we hope the pre-nup will remain filed away and we will never need to look at it again. I just want to be prudent and understand what I'm signing and how it applies alongside the pre-nup we already agreed to. I don't worry about divorce but one person in my family expressed concerns about marrying a foreign spouse (however, this was before they met my wife).

What can you tell me about listing assets vs. tax returns? It sounds a lot more complicated.

I am reluctant to check the box certifying I have filed taxes the last three years because I haven't yet. I have 2010 and 2013 but not 2011 and 2012. I do not wish to delay the refiling of I-130 / I-485, etc. either. So, it appears I will need to provide the 2013 tax return as asked on the I-864 to include with the immigration forms and file the 2011 and 2012 taxes ASAP in case the USCIS wants to see them.

Thanks much for your insights Ray, my wife and I really appreciate it.

[rjbell3]

Yeah, they are pretty much already there, both my folks are thrilled to have her in the family, they love her. Even the person who said it has changed her tune, but then again my sister is probably the most negative person in my life, so I just consider the source.

2013 is already done I said, so I guess I am all set. I feel bad checking the box that says I have filed the last three years files when I haven't but I think the solution here is I send the package and get to work on filing 2011 and 2012 so they are there if I get asked. It's money coming back anyway, silly to put it off any longer. I have read elsewhere going the assets route is a pain. We don't want to sell our property or dip into retirement, and quite frankly it's a lot more work getting that documentation together, especially since all her property deeds are in Brazil.

Do you know what happens in cases like this? Since we first filed prior to her I-94 expiration and the USCIS agent said she wouldn't need to go back I trust that if I get everything filed properly, it's going to work out just fine.

Thanks for all your help Ray. I really appreciate it.

Rjbell,

Everybody who has family in the U.S. hears "concerns" about the family member bringing someone from another country. It was my experience with both my wives (Mexican and Filipino), and most of the family finally concluded that they gained better new family members than the one they warned (me).

Assets must be of a type that is easily converted to cash within a reasonable period of time, at at least 3 times the income deficit. My advice is to avoid using this option, because it is a real quagmire. Over the years, I have worked with people who used actual cash or mutual funds, and one time a piece of business real estate. But if you are talking about home or care equity, or stamp collection, forget it.

You need to get the 2013 tax return done. You can do without earlier returns for this project.

--Ray B