Attested we would not AOS. Can we do so now?

[VGJ]

I am the USC. My husband and I met in a third country, dated, and were married 5 years ago. Our child was born (in the US) 3.5 years ago. My husband moved back to his country for work reasons 3 years ago. We visited him there once.

Our child and I moved back to the US 1.5 years ago. The plan was for my husband to come for a visit, file for the I-130, and then for him to return to his country after his visit to finish up the immigration process there. There were delays due to work, and he only arrived 2 months ago on a B1/B2. (We had looked into AOS and I thought I understood that people already married could not go that route.)

Before his last visa application, I wrote a letter for him to present at the embassy stating that we were planning to begin the immigration process, but we were not planning for him to file an AOS while here because we knew he was not eligible for one.

However, since his arrival, a colleague of mine keeps pressing us to try. She swears there should not be a problem. And since his arrival, we don't see how he will be able to leave our 3-year-old again. We would REALLY like to adust his status.

Is he eligible?

And what should we do about the letter I wrote to the embassy promising we were not going to try this?

[lionofafrica]

Attested or Attested not

VGJ,
You don't have to worry, your husband is qualify to AOS, here in the US.
I presumed that your marriage was entered to, in good faith and that you can proof that the child is a product of your marriage. There is no admisibility problem in what you have done, whether you attested to stay or not to stay does not matter at the embassy, they already presumed you guilty anyway, you then have to prove otherwise.
Please file your papers now before he overstays his I-94( point of entry card), anyway for a US citizen, it can be forgiven( i.e the 180days rule).
Lastly, make sure you have solid documents that is evidentry of this relationship, because the adjudicators are robots and many may not want to via off their manual even when the obvious is staring at them.

Lion of Africa.

[VGJ]

Thanks African Lion

I'm still not sure, so I think we will make an infopass before we file and contact the CO at the embassy in my husband's country to make sure we won't be stepping on any toes.

As for the marriage being legit, no fear of that. We were married over 5 years ago and lived together for several years before our child was born and before my husband returned to his country for work. (We were both living in that coutnry legally, and for the last two years, my husband was there on my visa.) I don't think I'd want to pay for a paternity test for our child, but no question we would pass it. Anyway, it shows us as her parents on her birth certificate and she looks just like her father.

We don't have a lot of proof of our relationship. We have no joint leases or bank accounts. It didn't work that way in the country where we were living. We have our marriage certificate which is from a fourth country, which shows we travelled on holiday to be married. We have pictures of him with my family over the years, and me and our child with his family and friends in his country. There is one picture that is a professionally taken family portrait of my parents, siblings, in-laws, nieces, and nephews, and my husband is in the center of it. We have a picture of our daughter's baptism performed by my uncle and the record of it. And I've written a timeline of our relationship as a sort of explanation. That's about it. The only other things we have are a couple of affidavits from friends who knew us in the country where we met, and insurance cards from that work place showing him as my dependent. I can't get that for him here because he doesn't have an SSN.

Anyway, as I've said, we will check with USCIS before we file.

[lionofafrica]

Uscis is no lawyer

Hi VGJ,
This will be a waste of time, you cannot gain access into Uscis building without having a case file( i.e- you must have a file #), without which it will be difficult , if not impossible to have an infopass appointment and if by a dint of miracle you are able to , you will be directed to see a lawyer, cos USCIS is no lawyer( there are pro bono lawyers who can assist you, just check for their list on the USCIS WEB LINK).
Contacting the CO/adjudicating officer in your husband's country is irrelevant if not impossible, they have no business with him unless for consular/visa services. He will not be granted audience or entrance onto the grounds of the embassy for frivolous enquiry like this, cos they have many things to do including looking out for terrorists( he will be directed to see a lawyer verse in America immigration laws )
As for your marriage certificate that is good, attached an affidavit to it( cos it was done in a fourth country and show proof that you were legal/illegal resident of that country.
Your child,if present in the US, will not need to undergo, DNA, testing as long as you have supporting evidence to show a parental/bloodline relationship or even if adopted( legal papers): as directed by State Department, DNA, testing should be done as a last resort to show proof of a relationship and should not be the only determinant( may apply abroad only).
Get your husband on your lease immediately( if he is living with you and not on the lease , America law considers that as illegal occupation of an apartment- this is one proof of relationship, add his name to your account at Bank of America, he does not need a SSN( for this), as long as he has a valid visa and his unexpired passport( native country), buy things with joint names( TV, Car etc), add his name to your car insurance policy if you have any.
Precious time will be wasted if you think you don't want to step on anybody's toes( you may as well crush toes if you are within the ambit of the law).
USCIS, is a monterous organization, better act fast now when the sun is still shining on your husband.
Another way is for you to remarry your husband here in the US,but the con is that you will have lost 5years ( but not in your mind-this is more important), and your husband will have to settle for a conditional LPR/Green card, if his case is adjudicated before the second year of marriage( which I think should).
The call is yours, I am not a lawyer, but have over 10years experience of dealing with the INS, now christian USCIS( a new wine in an old keg), and have read almost everything on immigration law including the adjudicator's manual, which is nothing but a mere guide, but most adjudicators hold unto it, as the holy Grail.
Lastly, get his name on your company's provided insurance if you have any( he does not need a ssn for this), buy a small life insurance policy for him or for youself and add his name to your or yours to his ( it doesn' matter).

[sur_pa]

Fourth country marraige and PRA

Hi

Lion of africa is right that your husband is eligible for AOS. On the otherhand, there is no need to show joint accounts or lease agreement etc. All you need is a Valid marriage certificate (You can marry anywhere on the earth but your marriage must be leagal). For your son, again you need a birth certificate indicating that you are the mother. USCIS does not care who the father is.

You wrote a statement that your husband will not apply for AOS etc. The US immigration law says that you can change your intent and thus, you can apply for the AOS after about 3 months and can extend his stay in the US (by applying for extension of B1). But remember, you must be rich enough to make him live without working. To work he needs a visa or a work permit or a green card.

Now hurry up and get the applications and related documents ready

[VGJ]

3 months?

Sur Pa,

Thank you for your response. It makes sense what you say about being able to change our minds. Now I'm curious about the 3 months you mentioned. Is that written somewhere or just a sort of unwritten guide, and why? We were hoping to start the AOS in a few weeks, but that won't be 3 months.

My husband has been here almost two months now. His I-94 does not expire for another four months. If we submit the I-485 and the I-765, do we also have to apply for an extension of his B1?

I'm by no means rich, but we had planned on him being here for 6 months without working anyway. And we are able to offset the additional costs of him being here by not paying for daycare for our daughter while he is here.

[sur_pa]

Sur Pa,

Thank you for your response. It makes sense what you say about being able to change our minds. Now I'm curious about the 3 months you mentioned. Is that written somewhere or just a sort of unwritten guide, and why? We were hoping to start the AOS in a few weeks, but that won't be 3 months.

My husband has been here almost two months now. His I-94 does not expire for another four months. If we submit the I-485 and the I-765, do we also have to apply for an extension of his B1?

I'm by no means rich, but we had planned on him being here for 6 months without working anyway. And we are able to offset the additional costs of him being here by not paying for daycare for our daughter while he is here.

As he has already spent 2 months, that is reasonable time to "change intension". There is no time limit to change minds. We dont want the adjudicator to think that he had pre-intension of staying long....and therefore.... I mentioned "about" three months. If you are ready with the paperwork, go ahead and submit them.

If you get a receipt of aceptance of I-485, you DONT have to extend the B1. In the meanwhile, if I-765 is approved, he can start working immediately. The catch for I-765 is, they may often, not approve until I-130 is approved. in either case, send I-130, I-485 and I-765 together.

He can start looking for a job or if the employer is willing to sponsor him any of the work related visa, accept it. If he is self employed, or has his own business, he can start them as well. Please consult before continuing the business...

Good luck