Is this the correct way of doing this?

[william_wallace]

Hello all. I am going to try and explain this situation the best way I can, plus keep it short as possible.

26th Dec 2008 I came over on the K1, we married within the 90 days but didn't get round to AOS (due to financial reasons)

Now our 2 year anniversary will be 7th March this year. We are now getting everything together so we can get it off to the USCIS. Our intentions was to send the I-485, EAD and AP doc, but we have been advised to also file the I-130 petition, reason for this is we are nearly 2 years married (send the packet off 7th March) so we can get the 10 year GC rather than the 2 year GC.

Apparently If we take this route, I won't need to remove conditions.

Can anyone give me some form of advice on what's the best way?

We have tons of evidence that our marriage is 100% intact eg- joint bank accounts, leases joint names, affidavit from people that have known us for 2 years and was at the wedding etc etc.

Thanks all

[nichole]

Just recently I read a case where 3 years had passed and the couple sent only the normal AOS things. They got a strange RFE which I think sounded like USCIS was asking for evidence that would normally be included with the ROC application. A normal AOS doesn't need evidences of marriage other than the marriage certificate submitted, but ROC wants proofs spanning the entire marriage of shared home and finances. I think you should read up on those I-751 instructions and try to cover all things they suggest as well as your AOS requirements.

One thing in that RFE asked for was a notarized statement from the USC that they were still married and he supported the adjustment of status. I'm guessing that was because people still married tick off a box that they are filing jointly and both sign the I-751 form. Since the I-485 isn't set up that way, I think you should write a joint statement stating you are still married, living together as husband and wife, and both support the application for permanent residence of <your name & A#>. Then both sign it in front of a notary.

The RFE also asked for a photo holding a current newspaper showing the date. I guess it was to show currently being together.

Then include tons of evidence like joint lease or house papers, joint bank statements, tax returns, credit cards, utilities, car insurance, beneficiary status on her health plan or pension or life insurance, trips taken together, birth certificate of any children born, driver licences or ids showing same address---basically everything you can to show both your names on it or living at the same address. Anf photos from wedding until now. Also several affidavits from people who have known you as a married couple. The USCIS tells you the particulars of what an addidavit should include.

Don't forget to have a complete medical exam and get an I-693 from a civil surgeon. Yours has expired.

Then sit back a wait. If they need an I-130, they'll RFE you.

[william_wallace]

Just recently I read a case where 3 years had passed and the couple sent only the normal AOS things. They got a strange RFE which I think sounded like USCIS was asking for evidence that would normally be included with the ROC application. A normal AOS doesn't need evidences of marriage other than the marriage certificate submitted, but ROC wants proofs spanning the entire marriage of shared home and finances. I think you should read up on those I-751 instructions and try to cover all things they suggest as well as your AOS requirements.

One thing in that RFE asked for was a notarized statement from the USC that they were still married and he supported the adjustment of status. I'm guessing that was because people still married tick off a box that they are filing jointly and both sign the I-751 form. Since the I-485 isn't set up that way, I think you should write a joint statement stating you are still married, living together as husband and wife, and both support the application for permanent residence of <your name & A#>. Then both sign it in front of a notary.

The RFE also asked for a photo holding a current newspaper showing the date. I guess it was to show currently being together.

Then include tons of evidence like joint lease or house papers, joint bank statements, tax returns, credit cards, utilities, car insurance, beneficiary status on her health plan or pension or life insurance, trips taken together, birth certificate of any children born, driver licences or ids showing same address---basically everything you can to show both your names on it or living at the same address. Anf photos from wedding until now. Also several affidavits from people who have known you as a married couple. The USCIS tells you the particulars of what an addidavit should include.

Don't forget to have a complete medical exam and get an I-693 from a civil surgeon. Yours has expired.

Then sit back a wait. If they need an I-130, they'll RFE you.

Thanks for the repy nichole. Here is the reason why I am going for the I-130.

The only problem I might have is that USCIS might require an I-130 petition, filled out and signed by the US citizen, along with the appropriate fee. This has to do with a conflict between two sections of the immigration law. One section says a K1 can only adjust to conditional permanent resident, and another says that someone married to a US citizen for two or more years must adjust to unconditional permanent resident. If USCIS determines that the latter requirement applies to me then they won't adjust my status based on the K1, but will adjust it based on an approved I-130 instead.

Now I could go ahead and send the AOS package with the forms prepared based on a K1 adjustment of status. There's a risk that USCIS would deny the petition if they conclude that I'm no longer eligible to adjust based on the K1 because of the conflicting immigration law. I would have to refile with the I-130, and pay all of the fees a second time. There's little risk it would be denied if I sent an I-130 with the AOS package, and adjusted based on the I-130. The only risk is that I would be paying for an I-130 petition that might not have been needed.

So if I hold back with filing until our 2 years marriage. File with the I-130, yet save big money and hopefuly headaches by not having to file for Removal of Conditions 2 years later and be rewarded with an unconditional 10-year Green Card, instead of an conditional, 2-year Green Card.

This is what I am hoping for. Is it possible or is this a long shot?

Thanks again.

[barbarajlw]

Thanks for the repy nichole. Here is the reason why I am going for the I-130.

The only problem I might have is that USCIS might require an I-130 petition, filled out and signed by the US citizen, along with the appropriate fee. This has to do with a conflict between two sections of the immigration law. One section says a K1 can only adjust to conditional permanent resident, and another says that someone married to a US citizen for two or more years must adjust to unconditional permanent resident. If USCIS determines that the latter requirement applies to me then they won't adjust my status based on the K1, but will adjust it based on an approved I-130 instead.

Now I could go ahead and send the AOS package with the forms prepared based on a K1 adjustment of status. There's a risk that USCIS would deny the petition if they conclude that I'm no longer eligible to adjust based on the K1 because of the conflicting immigration law. I would have to refile with the I-130, and pay all of the fees a second time. There's little risk it would be denied if I sent an I-130 with the AOS package, and adjusted based on the I-130. The only risk is that I would be paying for an I-130 petition that might not have been needed.

So if I hold back with filing until our 2 years marriage. File with the I-130, yet save big money and hopefuly headaches by not having to file for Removal of Conditions 2 years later and be rewarded with an unconditional 10-year Green Card, instead of an conditional, 2-year Green Card.

This is what I am hoping for. Is it possible or is this a long shot?

Thanks again.

On the information you have described and as I have seen on my other immigration site I would do the I-130 with your AOS as you are well and truly near or about to be over 2 years. Then you don't run the risk of being denied for applying under K1 status. I would run with that. 130

[bosplaya410]

i agree with the posting below because they will check the date of marriage on the certificate which is now more than 2 years so need to waste an extra420 bennies.