K3s - Better to file AOS or wait for I-130?
Aug 3rd 2004, 4:25 pm
#46
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Location: Santa Fe, NM from Dublin, Ireland
Posts: 502
Re: K3s - Better to file AOS or wait for I-130?
Originally posted by Matthew Udall
If this person filed in person at his office, did he say to the person he was handing his forms and checks over to, "just to be sure, I entered with a K-3 visa and I'm trying to file my AOS with a different I-130 as the original one is still pending at the Service Center… can I file this now or do I have to wait for the initial I-130 to be adjudicated"? That might have helped him avoid wasting his time and money.
If this person filed in person at his office, did he say to the person he was handing his forms and checks over to, "just to be sure, I entered with a K-3 visa and I'm trying to file my AOS with a different I-130 as the original one is still pending at the Service Center… can I file this now or do I have to wait for the initial I-130 to be adjudicated"? That might have helped him avoid wasting his time and money.
I truly didn't realize that accepting the I-485 while the original I-130 was pending was the exception. My (mis)understanding was that the USCIS expected K3s to file for AOS "as soon as possible" after entering the US and that the district offices had their own policies on how this could be done. This website has been invaluable for me to clear up this (and other) misunderstandings!
The proof of how much help we've received here is that so far the process has gone incredibly smoothly for us. The other couples we spoke with in the US Embassy in Dublin who were also waiting for K3 visas and had similar cases without complications, had already been there three times. They warned us that we'd probably be lacking paperwork that we needed. But after reading a million posts on this NG, not only did we have everything requested, our papers were arranged in our folder exactly in the sequence that the ConOff asked for them.
I'm going to write to the Albuquerque office to ask what their policy is concerning taking AOS applications for K3s with a pending I-130, just for the knowledge. But just to avoid any problems, we're going to wait for the I-130 approval.
Aug 4th 2004, 1:06 am
#47
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Re: K3s - Better to file AOS or wait for I-130?
Originally posted by Buendia
I've read this thread from CindyAbs... incredibly helpful!
http://britishexpats.com/forum/showt...d&pagenumber=1
Here's my take on the options:
1. wait for I-130 approval and go overseas for the visa
FEES - based on current processing times, this probably won't require a new medical, so fees will be about $400 plus plane tix back)
GREENCARD - we'll probably get a conditional greencard based on current processing times v. our anniversary - won't be two years until September 2005
2. wait for I-130 approval and go overseas for the visa, but delay returning forms to NVC in order to avoid the conditional greencard
FEES - will probably require a new medical, so fees will be about $700
GREENCARD - permanent greencard around September 2005
3. do AOS as soon as possible
FEES - For AOS, a new I-130 and fingerprinting - $570
GREENCARD - For our district office, AOS is taking approximately 7.5 mos currently, so we'd almost certainly get a conditional greencard, then have to wait another two years for the permanent one.
4. wait and do AOS about 7.5 months before our second anniversary (even on our second anniversary we still have about a year to go on our K3) in order to avoid the conditional greencard
FEES - For AOS and fingerprinting - $385 (a new medical would not be required based on this link from Ranjini - thank you for the link! - http://www.murthy.com/news/UDmedext.html)
GREENCARD - A permanent greencardif all goes as planned (ha - good luck!)
Anyway, our choice is to wait and see what happens with our I-130 application (processing times can change as we all know...) and then either go for consular processing or AOS here...
One question - if we delay sending forms back to the NVC in order to avoid the conditional greencard, would we then run into having another medical, OR does the new policy change that doesn't require a new medical for I-485s if a year has passed extend to consular processing, too?
I've read this thread from CindyAbs... incredibly helpful!
http://britishexpats.com/forum/showt...d&pagenumber=1
Here's my take on the options:
1. wait for I-130 approval and go overseas for the visa
FEES - based on current processing times, this probably won't require a new medical, so fees will be about $400 plus plane tix back)
GREENCARD - we'll probably get a conditional greencard based on current processing times v. our anniversary - won't be two years until September 2005
2. wait for I-130 approval and go overseas for the visa, but delay returning forms to NVC in order to avoid the conditional greencard
FEES - will probably require a new medical, so fees will be about $700
GREENCARD - permanent greencard around September 2005
3. do AOS as soon as possible
FEES - For AOS, a new I-130 and fingerprinting - $570
GREENCARD - For our district office, AOS is taking approximately 7.5 mos currently, so we'd almost certainly get a conditional greencard, then have to wait another two years for the permanent one.
4. wait and do AOS about 7.5 months before our second anniversary (even on our second anniversary we still have about a year to go on our K3) in order to avoid the conditional greencard
FEES - For AOS and fingerprinting - $385 (a new medical would not be required based on this link from Ranjini - thank you for the link! - http://www.murthy.com/news/UDmedext.html)
GREENCARD - A permanent greencardif all goes as planned (ha - good luck!)
Anyway, our choice is to wait and see what happens with our I-130 application (processing times can change as we all know...) and then either go for consular processing or AOS here...
One question - if we delay sending forms back to the NVC in order to avoid the conditional greencard, would we then run into having another medical, OR does the new policy change that doesn't require a new medical for I-485s if a year has passed extend to consular processing, too?
Hi there,
I have learn't today that the USCIS has recently sent the following notication to our address in the US. It says:-
"Receipt Number: xxxxxxxxxxxxxxx
Application Type: I130, IMMIGRANT PETITION FOR RELATIVE, FIANCE(E), OR ORPHAN
Current Status:
On August 2, 2004, the document we made based on the approval or registration of this case was
mailed directly to the person to whom issued".
My husband is here on business for another week so we won't know what is contained within.
Can someone shed some light onto what this could indicate?
Thanks
Kay
_________________________________________
Aug 4th 2004, 6:25 am
#48
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Joined: Jan 2004
Location: SFO
Posts: 871
Re: K3s - Better to file AOS or wait for I-130?
Originally posted by mdaitc
ok, here they are...
quote word for word, formatting included:...
Title 8, CFR, Section 245.1, states, in pertinent part:
"(i) Adjustment of status from K3/K4 status. An alien admitted to the United States as a K3 under section 101 (a)(15)(K)(ii) of the Act may appy for adjustment of status to that of a permanent resident persuant to section 245 of the Act at any time following the approval of the Form I-130 petition filed on the alien's behalf, by the same citizen who petitioned for the alien's K3 Status..." (emphasis added)
A thorough reivew of the record reflects that the applicant entered the United States on January XX, 2004 as a K3 non-immigrant. A petition for Alien Relative, Form I-130, was filed on his behalf on XX XX, 2003 by his US Citizen spouse.
On March XX, 2004, the applicant filed an Application to Register Permanent Residnet or AOS, Form I-485. His spouse filed a second Petition for Alien Relative, Form I-130, concurrently with this application for resident status. The original Petition for Alien Relative, Form I-130, was still pending at NBC.
At the time of filing the instant application, the applicant was not the beneficiary of an approved Form I-130 petition filed on his behalf by his US citizen spuse, as required by law. The instant application must therefore be, and hereby is, denied as a matter of law.
end quote...
So there you have it, if anyone who knows better would like to give me a case to argue with, then you're welcome...
edited for typing errors when sleepy.
ok, here they are...
quote word for word, formatting included:...
Title 8, CFR, Section 245.1, states, in pertinent part:
"(i) Adjustment of status from K3/K4 status. An alien admitted to the United States as a K3 under section 101 (a)(15)(K)(ii) of the Act may appy for adjustment of status to that of a permanent resident persuant to section 245 of the Act at any time following the approval of the Form I-130 petition filed on the alien's behalf, by the same citizen who petitioned for the alien's K3 Status..." (emphasis added)
A thorough reivew of the record reflects that the applicant entered the United States on January XX, 2004 as a K3 non-immigrant. A petition for Alien Relative, Form I-130, was filed on his behalf on XX XX, 2003 by his US Citizen spouse.
On March XX, 2004, the applicant filed an Application to Register Permanent Residnet or AOS, Form I-485. His spouse filed a second Petition for Alien Relative, Form I-130, concurrently with this application for resident status. The original Petition for Alien Relative, Form I-130, was still pending at NBC.
At the time of filing the instant application, the applicant was not the beneficiary of an approved Form I-130 petition filed on his behalf by his US citizen spuse, as required by law. The instant application must therefore be, and hereby is, denied as a matter of law.
end quote...
So there you have it, if anyone who knows better would like to give me a case to argue with, then you're welcome...
edited for typing errors when sleepy.
[begin quote]
The applicable law is listed in INA 245.1(c)(6)(ii) under Subsection, "Ineligible Aliens".
http://uscis.gov/lpBin/lpext.dll/ins...lb-8cfrsec2451
The short answer to this is the local USCIS office should process the I-485 when copies of both receipt notices of I-130 and I-129F are received together with the I-485 application package. The USC petitioner should send a letter to Service Center (where the original IR-1 I-130 was filed) to update the venue from US Consulate to local USCIS Office with copies of I-129F receipt notice, alien's K-3/4 visa stamp, entry stamps, SS Card, Driver License (basically to prove the alien is HERE) after the alien has entered this country and decided to take the adjustment process here i/o Consular Processing abroad.
The best way is to have a lawyer do the filing - some USCIS old guards never learn the new "tricks" :-(
[end quote]
I read INA 245.1(c)(6)(ii), it was a bit convoluted but basically it said:
(c) the following people are ineligible for adjustment of status:
(6) anyone who came in on a non-immigrant visa, except:
(ii) K3/4ers who are applying for AOS based on marriage to their USC spouse, who filed I-130 for them.
I don't know if you want the headache of going back and arguing again but according to the above, you should be able to adjust status. You shouldn't have to file a new I-130 though.
Aug 4th 2004, 8:23 am
#49
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Joined: Oct 2003
Location: Santa Fe, NM from Dublin, Ireland
Posts: 502
Re: K3s - Better to file AOS or wait for I-130?
Originally posted by hcj1440
The short answer to this is the local USCIS office should process the I-485 when copies of both receipt notices of I-130 and I-129F are received together with the I-485 application package. The USC petitioner should send a letter to Service Center (where the original IR-1 I-130 was filed) to update the venue from US Consulate to local USCIS Office with copies of I-129F receipt notice, alien's K-3/4 visa stamp, entry stamps, SS Card, Driver License (basically to prove the alien is HERE) after the alien has entered this country and decided to take the adjustment process here i/o Consular Processing abroad.
The best way is to have a lawyer do the filing - some USCIS old guards never learn the new "tricks" :-(
[end quote]
The short answer to this is the local USCIS office should process the I-485 when copies of both receipt notices of I-130 and I-129F are received together with the I-485 application package. The USC petitioner should send a letter to Service Center (where the original IR-1 I-130 was filed) to update the venue from US Consulate to local USCIS Office with copies of I-129F receipt notice, alien's K-3/4 visa stamp, entry stamps, SS Card, Driver License (basically to prove the alien is HERE) after the alien has entered this country and decided to take the adjustment process here i/o Consular Processing abroad.
The best way is to have a lawyer do the filing - some USCIS old guards never learn the new "tricks" :-(
[end quote]
Aug 5th 2004, 6:54 pm
#50
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Posts: n/a
Re: K3s - Better to file AOS or wait for I-130?
Originally posted by mdaitc
> I tried filing a new I-130
along with an I-485 and was denied -
>
> Here's the text of the denial
letter.
>
> quote word for word, formatting included:...
>
> Title 8,
CFR, Section 245.1, states, in pertinent part:
>
> "(i) Adjustment of
status from K3/K4 status. An alien admitted to the United States as a K3
under section 101 (a)(15)(K)(ii) of the Act may appy for adjustment of
status to that of a permanent resident persuant to section 245 of the
Act at any time following the approval of the Form I-130 petition filed
on the alien's behalf, by the same citizen who petitioned for the
alien's K3 Status..." (emphasis added)
>
> A thorough reivew of the
record reflects that the applicant entered the United States on January
XX, 2004 as a K3 non-immigrant. A petition for Alien Relative, Form I-
130, was filed on his behalf on XX XX, 2003 by his US Citizen spouse.
> On March XX, 2004, the applicant filed an Application to Register
Permanent Residnet or AOS, Form I-485. His spouse filed a second
Petition for Alien Relative, Form I-130, concurrently with this
application for resident status. The original Petition for Alien
Relative, Form I-130, was still pending at NBC.
>
> At the time of
filing the instant application, the applicant was not the beneficiary of
an approved Form I-130 petition filed on his behalf by his US citizen
spuse, as required by law. The instant application must therefore be,
and hereby is, denied as a matter of law.
>
> end quote...
>
> So
surely this mean "once the I-130 is approved, you can apply for AOS, but
before that, you're not allowed to"
>
> Since there is only 1 law, then
someone is right and wrong, whether it be the KC office or the other
offices i don't know, and wouldn't like to comment.
>
> Matt
I applied for AOS with approved I130 for myself and AOS without
approved I130 (still pending) for my son. Both were accepted and
notices of action received.
--
Posted via http://britishexpats.com
> I tried filing a new I-130
along with an I-485 and was denied -
>
> Here's the text of the denial
letter.
>
> quote word for word, formatting included:...
>
> Title 8,
CFR, Section 245.1, states, in pertinent part:
>
> "(i) Adjustment of
status from K3/K4 status. An alien admitted to the United States as a K3
under section 101 (a)(15)(K)(ii) of the Act may appy for adjustment of
status to that of a permanent resident persuant to section 245 of the
Act at any time following the approval of the Form I-130 petition filed
on the alien's behalf, by the same citizen who petitioned for the
alien's K3 Status..." (emphasis added)
>
> A thorough reivew of the
record reflects that the applicant entered the United States on January
XX, 2004 as a K3 non-immigrant. A petition for Alien Relative, Form I-
130, was filed on his behalf on XX XX, 2003 by his US Citizen spouse.
> On March XX, 2004, the applicant filed an Application to Register
Permanent Residnet or AOS, Form I-485. His spouse filed a second
Petition for Alien Relative, Form I-130, concurrently with this
application for resident status. The original Petition for Alien
Relative, Form I-130, was still pending at NBC.
>
> At the time of
filing the instant application, the applicant was not the beneficiary of
an approved Form I-130 petition filed on his behalf by his US citizen
spuse, as required by law. The instant application must therefore be,
and hereby is, denied as a matter of law.
>
> end quote...
>
> So
surely this mean "once the I-130 is approved, you can apply for AOS, but
before that, you're not allowed to"
>
> Since there is only 1 law, then
someone is right and wrong, whether it be the KC office or the other
offices i don't know, and wouldn't like to comment.
>
> Matt
I applied for AOS with approved I130 for myself and AOS without
approved I130 (still pending) for my son. Both were accepted and
notices of action received.
--
Posted via http://britishexpats.com
