When it rains it pours

[ch0wd0wn]

Hello Immigration experts

I need some guidance with a grim situation I'm in and I'm hoping someone can lead me in the right direction.

My best friend (U.S. Citizen) got married to a woman (VN Citizen) in Vietnam back in 2019. His wife has 3 kids already from previous marriage. They got pregnant and had twins in 2020 (born in Vietnam). He went to embassy and got the twins registered and they are U.S. Citizens. At the end of 2020 him, wife and 5 kids came to U.S. on K1 Visa. They got married again in the U.S. immediately upon arrival. He had asked me to fill out the sponsor form because I have a good job, W2's ...1040...checking...savings...etc (he doesn't). He applied for green card for his wife and her 3 kids...using the I-485 form in December. For some reason he filled out i485 for each person, wife and 3 kids (so 4 forms) ...

In Jan 2021 all forms got returned. Turned out he was using an expired form.

In Feb 2021 he passed away from colon cancer it happened so quickly

So now I'm trying to help his wife and her 5 kids. They are lost and desperately need help. The twins aren't even 1 years old yet! =(

Anyways in my research and talking to people I filed form I-360 for his wife ...for being a widow of my best friend (U.S. Citizen)

And thats where we are now... we filed in March after the funeral and haven't heard anything back yet... its been months. Now I'm hearing that it can take up to a year...

Questions I have:

How long does it take for I-360?
Is there a way to check status on I-360?
Is this the proper processs? File I-360 first...once approved then file I-485 ?
What happens in the mean time while filing all these paper work? Is the wife and her children breaking any rules to be here? They did have a K1 and they did get married within 90 days..

I'm so busy myself and trying to help my best friends widow and their kids and don't have time to research all this in detail. Not much money to hire immigration lawyers.

Please help me just guide in the right direction....I can do the rest...just need to know if I'm going down the right path

Thanks so much
-C-

[rkk09]

Hi,
Since this is case specific and complex to determine, Its better to have a discussion with Immigration Attorney.. But, I can share few info on your questions.
How long does it take for I-360?
Answer: Usually I-360 and I-485 or VAWA application will take 16 to 21 monthly to complete petition fully.
Is there a way to check status on I-360?
Answer: Yes. Hope you will get receipt number.. With the help of that, you can track the status through USCIS case status online page.
Is this the proper process? File I-360 first...once approved then file I-485 ?
Answer: Filing I-360 and I-485 concurrently is possible.. Instead of filing one another you can consider filing both together.
Thanks

[ch0wd0wn]

Thanks so much for your reply that helps alot. Since I already filed I-360 would it be ok if I file the I-485 now?

[newacct]

Yes, you can file I-485 when I-360 is pending.

From your description, one thing that might be problematic is that you said they got married in Vietnam, and then got a K1 visa. If they were already married, they were not eligible for a K1 visa. A marriage anywhere in the world, that was conducted according to the law of the place where it took place, is automatically recognized by the US. They don't get to pretend they are single and then "get married again" in the US -- that second marriage is void, and the legal date of marriage is the first one. She should truthfully disclose the actual date of the marriage (the first one), and I don't know whether there will be issues with misrepresentation from when they got the K1 visa. In any case, in this category she just needs to have entered legally, so she should still be able to adjust status. They will ask her for a waiver if necessary.

[ch0wd0wn]

Sorry for the late response. In Vietnam they had an unofficial wedding ceremonial only for traditional purposes only. When they got to the U.S. on the K1 they officially got married in Stockton about 1 month after her arrival.

Yes I have also found other resources indicating that I-360 can take long time, however I was told I can file for grievance at local congress office to try an expedite the process due to her husbands recent death. I'm hoping that can speed up the process....

So while we are waiting for all these forms and things like that.... How do I know if she's currently legal to be here?

[newacct]

Actually, if she entered on a valid K1 and married within 90 days, she might not even need to file I-360; AOS from K1 can be approved even after the marriage ended. See USCIS Policy Manual, Volume 7, Part B, Chapter 7, section F:

A nonimmigrant fiancé(e) who contracts a valid and bona fide marriage to the U.S. citizen petitioner within the requisite 90-day time period remains eligible to adjust status on that basis, even if the marriage is legally terminated (whether by death, dissolution, or divorce) prior to adjustment of status and regardless of whether the nonimmigrant fiancé(e) remarries thereafter. The applicant remains subject to all conditional permanent residency requirements, if applicable.

But since she filed I-360, she might as well go with that. She is in the Immediate Relative category, so she does not need to be in status to apply for Adjustment of Status. If she wants to be protected against deportation, she can file I-485 as soon as possible. Like I said, the I-485 can be filed together with I-360 or while the I-360 is pending. Since she can file I-485 and legally stay in the US, there is no need for the I-360 to be expedited.