Visa Waiver stay about to expire...but i-130 pending...what to do now?

[blaine74]

So I filed a i-130 for my mother in law (wife is petitioner) but didn't realize that I needed to file i-485 at the same time (tier 2 officer said that they will reject it because I didn't file it at same time as original i-130) I don't quite agree with this, but nonetheless, I did forget to include the NOA for the i-130 (primarily because it came the day after I sent in the I-485)

So my question is, we were hoping to get the i-485 approved soon while we wait for her i-130 to be processed so that she wouldn't have to leave while the Green Card is being processed. But given that there is a good chance it might be rejected, what is she to do now? If she leaves she is endangering her I-130 because she will not be able to come back in. If she stays, she is overstaying her stay and in violation of the visa waiver program.


Should she be an illegal alien for the 1-2 weeks while the AOS is being re-processed/approved? Or do we refile the i-130 and pay another $420 to get her petitioned again?


thanks in advance

[rayb]

What response did you provide on the I-485, Page 1, Part 2? If you did not have an approval NOA for the I-130 and were not submitting the I-130 in the same package, you could not have appropriately checked Box 'a.'

I would expect your I-485 submittal to result in: 1) rejection and entire package returned to you; or 2) "Request for evidence," in which case you should include copy of Receipt NOA for I-130; or 3) Denial for lack of immigrant petition proof.

Since mom is on a visa waiver, don't let her overstay.

Her I-130 will eventually be approved, and she can then try to return to the U.S. and you can start the I-485 process over (or continue with the existing I-485 if it is not denied.

If mom cannot return to the U.S., just proceed with I-130 processing in her own country.

--Ray B

So I filed a i-130 for my mother in law (wife is petitioner) but didn't realize that I needed to file i-485 at the same time (tier 2 officer said that they will reject it because I didn't file it at same time as original i-130) I don't quite agree with this, but nonetheless, I did forget to include the NOA for the i-130 (primarily because it came the day after I sent in the I-485)

So my question is, we were hoping to get the i-485 approved soon while we wait for her i-130 to be processed so that she wouldn't have to leave while the Green Card is being processed. But given that there is a good chance it might be rejected, what is she to do now? If she leaves she is endangering her I-130 because she will not be able to come back in. If she stays, she is overstaying her stay and in violation of the visa waiver program.


Should she be an illegal alien for the 1-2 weeks while the AOS is being re-processed/approved? Or do we refile the i-130 and pay another $420 to get her petitioned again?


thanks in advance

[blaine74]

got an email (used the i-1145) saying that the i-485 and fee was received and that the NOA would be mailed out in 7 days. Now I don't know if they means that they will or will not reject it but my applicant should be ok now right?

talked to an attorney and they said it is ok for her to stay beyond her visa stay.

[rayb]

If there is a viable basis for immediate eligibility, the applicant is in a "protected" status after her visa expires, while waiting for adjudication.

--Ray B

got an email (used the i-1145) saying that the i-485 and fee was received and that the NOA would be mailed out in 7 days. Now I don't know if they means that they will or will not reject it but my applicant should be ok now right?

talked to an attorney and they said it is ok for her to stay beyond her visa stay.

[blaine74]

update.....





got the I-797 for all 3 docs (485, 765, 131)



all accepted and in process. It wasn't rejected.