scrubbedexpat099

You seem intent on complicating matters by engaging in fraud.

You should just file for your mother and ignore your Fathers petition.

discoviking

Might not be that simple, since she came on a K3. K1's can only adjust based on the original petitioner. Not sure about K3.

I second Rene's advice of seeking legal advice before doing anything to complicate matters further. J Craig Fong is a good choice. Laurel Scott in Houston is also good.

ian-mstm

It shouldn't matter. All it means is that if she wanted to adjust status based on her K-3 visa, then her husband would have to be the one to follow through.

In this case, though... she has another option. She can file based on being the mother of a USC who, from what it seems, is over 21 and eligible to file an I-130 on her behalf. Adjusting because her son is a USC is totally separate from whether or not she's in the US on a K-3 visa. She has a viable and legal means of adjusting status... and it takes the husband out of the picture.

Fragger - I also think you should speak to a good immigration attorney about this - mostly because you've already toppled over the edge of committing fraud by having submitted an AOS package on behalf of your mum based on a non-viable marriage to the K-3 sponsor. You need to take care of this first - because it may, in fact, have a determination on whether or not your mum gets put into removal proceedings.

If, however, that works out for you, then you should be able to submit an I-130 petition concurrent with your mom's I-485 (and all the other stuff) without any major problems.

You have been given the names of two very competent immigration attorneys - I suggest you contact them and get this sorted out... immediately!

Ian

discoviking

Understood, and this is why consulting with competent legal counsel is crucial. We know that someone admitted on a K1 visa can only AOS based on the original petitioner. A K1 entrant can not change their mind, remain in the US and Adjust based on a relationship to a different sponsor. I do not know if the same restriction applies to someone admitted on a K3 visa.

Yes, but Mum can only adjust based on the relationship to her USC son if she is admitted in a status that allows the adjustment in the first place. The question is whether or not a K3 admission has similar restrictions on AOS as a K1 admission. I don't know the answer to that.

Noorah101

If you were to be a Joint Sponsor, you were supposed to file an I-864 of your own. An I-864A is for a contributing household member, which means your father added your income to his income (which I realize is zero) on his I-864, and said that you live in the same household that he does. And you agree that you live under the same roof, since you signed the I-864A. From what you've said here, that is not the actual scenario. Your father seems to live outside the USA, so you actually do not live under the same roof together.

I am not giving any advice, I'm just pointing out that by filing an I-864A, you aren't claiming to be a joint sponsor, but you are claiming to be a contributing household member, and that you and your father live together.

This is clearly NOT the case.

Rene

Fragger

Dear Friends,

Thanks again for coming in with your sincere and knowledgeable answers. Couple of things to clarify here:

1. The news of divorce to my mother came in yesterday to me, and thus I posted here. Before submitting the AOS packet, we had no such information, so it wasn't intended to be fraud.

2. The Affidavit of Support, per my understanding, and the instructions is structured in a way that the I-864 is filled out by the Principle Sponsor no matter what their income is, while 864A is filed by the contributing or Joint Sponsor. Indeed, my Dad's income was 0, and I more than met the requirements. Now, physically speaking, my Father went overseas to sort out some matters, yes, but in terms of records and etc, his official address in the US is the SAME roof that my Mother and I live under. Furthermore, it is where he left from, when he was leaving the US.

I agree with you guys, I will be reaching out to one of the recommended Attorneys right away. My gut says to let the AOS application linger for as long as it can (after all, I paid the massive fees associated with it and then got blindsided), and in parallel, file an I-130 for my Mom. Question being, whether to do concurrent filing OR the regular method, which would be the fastest and the least complicated, with my Mom being in the country for as long as possible.

Does anyone know what kind of Processing Times they are currently doing on the I-130s these days?

Noorah101

This is incorrect.

For a category where a visa number is immediately available, it takes about 5 months to process the I-130, when the I-130 is filed alone (towards an immigrant visa).

Rene

Fragger

Rene, when you say process the I-130, you just mean the Approval of the application, correct? This minus the NVC and Consulate Processing times, correct? Which should be another 3-4 months, I assume? So roughly 8 months from filing to Green Card?

ian-mstm

We know that... but the US government may not care!


The law makes a distinction between a contributing household member and a joint sponsor. They aren't interchangeable. You're either one or the other. An I-864A can't be filed by a joint sponsor.

Ian

Noorah101

Correct. That is all you asked about.

Correct.

A typical Immigrant Visa case for an immediate relative, from filing I-130 to getting Immigrant Visa in hand takes about 8 - 10 months. The immigrant won't get the Green Card until they enter the USA using the Immigrant Visa.

Rene

zerlesen

The AOS application is obviously (?) dead in the water, as the relationship upon which it is based would need to be legit at the time of adjudication. However, if the application was not frivolous when it was filed, it's an interesting question (to me) whether the OP is now obliged to withdraw it prior to its inevitable rejection.

EDIT: In case it hasn't been emphasized enough, this

is pretty much the worst idea in the history of ideas.

Fragger

Hey Friends,

So much per your advice here, I spoke to a very good lawyer (Susan Pai).

She's in agreement with you guys, that we should perhaps withdraw the application for Adjustment Filed Based on my Dad, ASAP, and put in an Adjustment Application through me...

Apparently, the K-3 being an issue for her presence here, is not really an issue, applies more towards K-1.

Her suggestion is to file my application as a USC for my Mother, and withdraw my Dad's adjustment application. However, my Mom would still be protected with lawful presence in the country due to a "Pending" application for adjustment.

What are your guys thoughts on this? Her fees are very expensive though! Any ideas folks?

Thanks again for your help.

P.S. I am starting to see and agree with you guys that the current application is a route toward possible grounds for fraud, so I am looking to get that out of the picture, ASAP as well... just thought I'd let you guys know...

Thanks again for all your help!

zerlesen

This is what I mean about the question being interesting: as long as the doomed AOS is still pending your mother can stay in the country - so if the I-130 you file is processed in time then it sounds like, in principle, she could file a new I-485 and then withdraw the old one. This sounds to me like it could conceivably be considered to be gaming the system, but I have no idea.

EDIT: The issue being that once the old I-485 is withdrawn (or, in the fullness of time, denied) she's no longer an applicant for AOS and then she has to leave. Or did I miss something?

EDITx2: To remove the word "surely," which thanks to this forum I now try to avoid in the context of US immigration law.

Noorah101

How much is it worth to you, to have your mother legally stay in the USA?

Rene

ian-mstm

Susan is a former member here! She is a very good immigration attorney. I suggest her fees are reasonable - especially since you (unknowingly) complicated your mom's immigration problems. Pay her! She's worth it.

Ian