Do I need to stay in the US while I filed the I-130 and I-485 for my spouse?

[PFU]

I am a US citizen, married in Hong Kong and have live there for 10 years. My two kids who born in Hong Kong also got the US citizenship after file a “Consular Report of Birth Abroad (DS-2029) and my wife has a tourist (B-2) Visa.

We are planning to move back to US during this year of August and have been consulted the US Consular in Hong Kong whether I should file I-130 in HK for my wife, but they said the time (only around 8 months) is too short, it is better to file in US. Thus, I am thinking to file a “I-130” & “I-485” for my wife when the time we arrived in US instead of file in Hong Kong.

But my question is do I need to permanent present in US when the time I filed ? Because I need to return to Hong Kong for work till end of 2018-Jan and my wife will stay in the US for take care of kids. I believe that it will take around half year for her Green card issue is that true?

Thanks in advance.

PFU Alex

[Davisgraham]

Family Based Greencard!!

Hi,
I read your post but sorry I have no idea about this issue. You should consult with US Visa counselor. He will guide you in a better way than anyone else.
Thanks!!

[newacct]

I'm really surprised that the consulate told her to go to the US on a B2 visa and do Adjustment of Status. Entering the US on B2 with intent to do Adjustment of Status on that trip is against the rules and CBP is required to deny her entry if they have suspicion that that's what she intends to do.

You need to be domiciled in the US when she files I-485. That doesn't necessarily mean you have to be in the US all the time, but I am not sure whether working abroad counts. Also, you will need to attend the I-485 interview with her in the US, and you will need to show evidence of bona fide marriage, which will be awkward if you guys are living in different countries.

[PFU]

I'm really surprised that the consulate told her to go to the US on a B2 visa and do Adjustment of Status. Entering the US on B2 with intent to do Adjustment of Status on that trip is against the rules and CBP is required to deny her entry if they have suspicion that that's what she intends to do.

You need to be domiciled in the US when she files I-485. That doesn't necessarily mean you have to be in the US all the time, but I am not sure whether working abroad counts. Also, you will need to attend the I-485 interview with her in the US, and you will need to show evidence of bona fide marriage, which will be awkward if you guys are living in different countries.

Thanks your advice. Actually, the staff in the US Consulate did told us to file I-130 in order to apply for an immigrant visa for my spouse. She said we can try to file while in the US but we need to do it immediately after we landed and state clearly our purpose to permanent stay. My wife may also need to return to HK after submitting the application. Our plan is to move back this year August and there's not plenty of time to get the immigrant visa. I was told if I file the application overseas, the processing time will be very long. My problem is I need to come back to HK for work and I need my wife to take care of kids in the US during my absent (till 2018-Jan).

I read a post two years ago in this forum mentioning that submitting the I-130 & I-485 and once accepted by USCIS, my spouse will be in a "protected" mode during the processing, even her B2 visa expired will not matter. Is that true? Thanks

[newacct]

Thanks your advice. Actually, the staff in the US Consulate did told us to file I-130 in order to apply for an immigrant visa for my spouse. She said we can try to file while in the US but we need to do it immediately after we landed and state clearly our purpose to permanent stay. My wife may also need to return to HK after submitting the application. Our plan is to move back this year August and there's not plenty of time to get the immigrant visa. I was told if I file the application overseas, the processing time will be very long. My problem is I need to come back to HK for work and I need my wife to take care of kids in the US during my absent (till 2018-Jan).

I read a post two years ago in this forum mentioning that submitting the I-130 & I-485 and once accepted by USCIS, my spouse will be in a "protected" mode during the processing, even her B2 visa expired will not matter. Is that true? Thanks

If she states her purpose to permanently stay, she will pretty much 100% be denied entry.

Also, if she files and then leaves the US while the I-485 is pending, before getting Advance Parole (which takes 60-90 days after applying for AP to get), she will automatically abandon her I-485 and it will all be a waste.

Once she files she can stay as long as it is pending.

[PFU]

If she states her purpose to permanently stay, she will pretty much 100% be denied entry.

Also, if she files and then leaves the US while the I-485 is pending, before getting Advance Parole (which takes 60-90 days after applying for AP to get), she will automatically abandon her I-485 and it will all be a waste.

Once she files she can stay as long as it is pending.

Thanks a lot @newacct. Absolutely agree, that's really helps a lot. Appreciated