I130 and I485 questions

[silverstar001]

Hi everyone,
I'm a Canadian citizen and my husband is American citizen, and I am hoping to get some answers as I am trying to fill out i-485 and getting stuck with it.

Our case is complicated.

My husband was not American citizen by birth he is from Bosnia and when I met him he had lived in America for many years, and he had an American permanent residency status. I came from Canada to the US on a B-2 visitor pass and we got engaged in March 2016. We started the green card process since I was not planning to go back to Canada and would be living in the States with him now. We thought it would be easier to wait till he was a citizen before filling out i-130, i-485 together. Especially because his naturalization appointment was scheduled already in June 2016, so the whole process would be a lot more smooth and fast. On the morning of the appointment when he was about to head out to Buffalo, NY, for naturalization, we received a call telling him the appointment was cancelled (didn't tell us why) and we would receive a letter telling us when the next one will be.

Now that it was so late in the year already, and I was still on my B-2, there was even more an urgent need to file i-130 as soon as possible to get the information to USCIS about me living in the States, our marriage and my desire for permanent residency. The USCIS said we should file it even though he was still a permanent resident, and file it saying he was a permanent resident. We were told at that time that when he became American citizen it would automatically transfer over in their system (that he was now citizen petitioner... faster processing) and it will be fine. So we did that, i-130 and all related documents got sent in August 2016 and we got an approval notice i-797 for it in January 2017 and another letter saying we were now in queue and my current status was that I am under F2a, spouse of a permanent residence.

Fast forward again, my husband gets his naturalization, and now here I am trying to do i-485 and I'm stuck on the blank that says "current status". After some digging on immihelp (https://www.immihelp.com/family-base...n-upgrade.html) I found that we are supposed to send a letter to NVC to get them to change the status? I wasn't informed of this, I was told it would be an automatic change in their system. Also the letter on the page shows a date of 2005, so I don't know if this is current information. Does anyone know if this is still correct. Do I have to send a letter and wait for their response before filling out i-485? What do I put on the form for my current status? I am not F2a technically because my husband is a citizen now.

thanks everyone for reading my story and thanks in advance for the help.

[azblk]

just file i-485 plus the other forms like employment authorization and advance parole. Include a copy of your i-797C. Make sure you select the box on i-485 that says you are the spouse of a US citizen.

[silverstar001]

but what do i put for question 24?

just file i-485 plus the other forms like employment authorization and advance parole. Include a copy of your i-797C. Make sure you select the box on i-485 that says you are the spouse of a US citizen.

Hi AZBLK and thank you for responding to me. I am aware I need to fill out those forms and send them a copy of i-797. That is why I am stuck. I need to fill out question 24 which reads: "What is your current immigration status (if it has changed since your arrival)"

Yes it did change since arrival, as per the notice they sent me my current status is F2A - spouse of permanent resident, but I am telling you it has changed again to something else (whether they know that or not) because I am the wife of an American citizen now, not American permanent resident. What should I answer in box 24. Thank you.

[newacct]

Hi AZBLK and thank you for responding to me. I am aware I need to fill out those forms and send them a copy of i-797. That is why I am stuck. I need to fill out question 24 which reads: "What is your current immigration status (if it has changed since your arrival)"

Yes it did change since arrival, as per the notice they sent me my current status is F2A - spouse of permanent resident, but I am telling you it has changed again to something else (whether they know that or not) because I am the wife of an American citizen now, not American permanent resident. What should I answer in box 24. Thank you.

Your current status is "B2 (expired)". The only change since arrival was that you became out of status when you overstayed after your B2 status ended (B2 status is generally for no more than 6 months).

F2A is a category for immigration. You are now in the Immediate Relative category. Along with the I-485 you should specify clearly in the cover letter that the petition should be "upgraded" to the Immediate Relative category, because the petitioner is now a US citizen, and attach a copy of his Certificate of Naturalization. This is important as you cannot file I-485 in a non-Immediate-Relative category if you are out of status. You don't need to send anything to NVC; just file I-485 and USCIS will request the petition from NVC if necessary.

(By the way, there was no benefit of filing I-130 first; having a pending or approved I-130 doesn't give you any benefits or allow you to stay in the US. You should have just waited until he was a citizen to file I-130 and I-485 together. But anyway, it doesn't matter now.)

Also, make sure to say "Yes" to Part 8 #17 on I-485 (Have you EVER violated the terms or conditions of your nonimmigrant status?) because you overstayed. It does not affect your I-485. Just truthfully state the date when your B2 status ended and that you stayed beyond that. No further explanation is necessary.

[azblk]

Hi AZBLK and thank you for responding to me. I am aware I need to fill out those forms and send them a copy of i-797. That is why I am stuck. I need to fill out question 24 which reads: "What is your current immigration status (if it has changed since your arrival)"

Yes it did change since arrival, as per the notice they sent me my current status is F2A - spouse of permanent resident, but I am telling you it has changed again to something else (whether they know that or not) because I am the wife of an American citizen now, not American permanent resident. What should I answer in box 24. Thank you.

Filing an i-130 doesn't change your immigration status. F2A is simply a filing category. You immigration status is still the same as when you entered or whats is on your i-94. What you need to do file those forms and also have your husband write a letter requesting his i-130 petition for you be upgraded to IR-1.

[silverstar001]

Thank you

Thank you so much for helping me with this. I didn't realize that F2a is not concerning my immigration status. Anyway it was the USCIS that suggested we not wait to send i-130 and to send it immediately even though he is not a US citizen yet so I am still glad we did that. So I will put B-2 visa (expired) and note.

I thought I should write some more information for people that may be going through the same thing and have the same question:
My husband called the USCIS and got more information today. We need to send the NVC a letter stating that his status is changed/upgraded and send them a copy of his naturalization certificate. They told him that we need to wait to hear back from NVC before sending i-485. I will mail the NVC his letter tomorrow and wait for a response.

thanks again for the help

[newacct]

Thank you so much for helping me with this. I didn't realize that F2a is not concerning my immigration status. Anyway it was the USCIS that suggested we not wait to send i-130 and to send it immediately even though he is not a US citizen yet so I am still glad we did that. So I will put B-2 visa (expired) and note.

I thought I should write some more information for people that may be going through the same thing and have the same question:
My husband called the USCIS and got more information today. We need to send the NVC a letter stating that his status is changed/upgraded and send them a copy of his naturalization certificate. They told him that we need to wait to hear back from NVC before sending i-485. I will mail the NVC his letter tomorrow and wait for a response.

thanks again for the help

I would not put much confidence in what the USCIS "misinformation line" has told you. They have already told you something that was useless and potentially could have been bad for you -- they told you to send the I-130 first when there was no benefit to doing so, and it could have drawn attention to the fact that you soon after didn't leave and overstayed; thankfully you weren't caught and deported in the year or so you have overstayed. I don't think there is any reason you need to notify and wait to hear back from NVC -- just file I-485 now and have USCIS handle the upgrading of the petition. Every day you wait to file I-485 is one more day you could be subject to deportation.

[Olgajason]

Thank you so much for helping me with this. I didn't realize that F2a is not concerning my immigration status. Anyway it was the USCIS that suggested we not wait to send i-130 and to send it immediately even though he is not a US citizen yet so I am still glad we did that. So I will put B-2 visa (expired) and note.

I thought I should write some more information for people that may be going through the same thing and have the same question:
My husband called the USCIS and got more information today. We need to send the NVC a letter stating that his status is changed/upgraded and send them a copy of his naturalization certificate. They told him that we need to wait to hear back from NVC before sending i-485. I will mail the NVC his letter tomorrow and wait for a response.

thanks again for the help

Check out information about provisional waiver they are allowed you stay in a country legally even if you overstayed and apply for adjustment of status.
Overstay excusable if you married a citizen.

[newacct]

Check out information about provisional waiver they are allowed you stay in a country legally even if you overstayed and apply for adjustment of status.
Overstay excusable if you married a citizen.

No. The provisional waiver is not relevant to this. The OP has no ban to waive. The OP is eligible for Adjustment of Status. The provisional unlawful presence waiver is only for people who are not eligible for Adjustment of Status, so must leave the US to do Consular Processing, but will trigger a ban upon leaving the US. The OP is doing AOS and thus not leaving the US and is not triggering any ban.

[Olgajason]

No. The provisional waiver is not relevant to this. The OP has no ban to waive. The OP is eligible for Adjustment of Status. The provisional unlawful presence waiver is only for people who are not eligible for Adjustment of Status, so must leave the US to do Consular Processing, but will trigger a ban upon leaving the US. The OP is doing AOS and thus not leaving the US and is not triggering any ban.

I was talking with 5 different lawyers they all said apply for this waiver.

[newacct]

I was talking with 5 different lawyers they all said apply for this waiver.

Which means your situation is different from the OP's and you are not eligible for Adjustment of Status.

[Olgajason]

No. The provisional waiver is not relevant to this. The OP has no ban to waive. The OP is eligible for Adjustment of Status. The provisional unlawful presence waiver is only for people who are not eligible for Adjustment of Status, so must leave the US to do Consular Processing, but will trigger a ban upon leaving the US. The OP is doing AOS and thus not leaving the US and is not triggering any ban.

Which means your situation is different from the OP's and you are not eligible for Adjustment of Status.

You have to read about this waiver I guess. Because I have exactly the same situation as this person and I applied for adjustment of status with provisional waiver.

[Olgajason]

Which means your situation is different from the OP's and you are not eligible for Adjustment of Status.

It could be just lawyers took money from us, they like file for waivers for some reason,my husband was doing all this work. I left country after, which I shouldn’t do. This also was lawyer advice.
It could be just waisted money from our side.

[newacct]

It could be just lawyers took money from us, they like file for waivers for some reason,my husband was doing all this work. I left country after, which I shouldn’t do. This also was lawyer advice.
It could be just waisted money from our side.

If you left the country, then you are not doing Adjustment of Status. Adjustment of Status refers to the process of getting permanent residency from inside the US.

[Olgajason]

If you left the country, then you are not doing Adjustment of Status. Adjustment of Status refers to the process of getting permanent residency from inside the US.

Not necessary, you can start from outside. Form I-485 should be filled from inside of the country, but the whole process you start from I-130 which could be filled from outside. Also you can have permission to leave during the process depends from circumstances.