Rox4BrainsAsh

I'm wondering if we've made the wrong decision, although it seems a bit too late to fix anything if we have.

Three years ago I filed an I-130 petition at TSC for my DH (UK citizen), and then we went the K3 route. Well his I-130 was approved at the time that we were going to adjust status, and after looking at processing times for adjusting status where we lived (Louisiana), we thought going through the London Consulate and staying the I-130 route would be the best way to go.

Now, we're at the point where we get to pay the $380 application fee and I received a new I-864 to fill out and send back. At the same time, his K3 visa expires at the end of August.

It'd be crazy to think that if we mailed everything back this week, that he could have an interview in London in August, isn't it? He doesn't want to be here out of status, so he was going to go back in August and wait it out there. Is there any reason to believe he'd be waiting quite a while there? We're expecting a baby (our first!) in December, and I don't want him to miss the birth (or really the lovely pregnant me suffering the last half of this pregnancy).

Does it look like we're doing something completely wrong and we should abandon this way and do something else, or does it look like we're on the right track? Any thoughts are appreciated.

And this is a question for the Affidavit of Support (I-864), do I have to have made the qualifying salary on the last three years' tax returns? I've only done that for the past two.

Thanks!

Ash

johnandrose

Hi Ash -

I don't think your husband HAS to leave the US. You can apply for an extension of his K3 visa. I got the following info for you:

14.8)...My status as K3 is about to expire, and I am still waiting approval of AOS. Is there anything I can do to keep my status?
A..Yes, you can apply for an extension of status with the USCIS (INS). This will enable you to leave the United States and return without needing Advance Parole. It is probably a good idea to extend the K3/K4 status if you plan on being outside the country.
As with renewal of EADs, your application for extension of status as K3/K4 will not be approved if you have never applied for Adjustment of Status, unless you show that your initial I-130 petition is still awaiting approval, or, if the I-130 was approved, that you have applied for an immigrant visa at a U.S. Consulate.

Source is: http://www.visajourney.com/faq/k3k4visa-aos.html

As you can see, your husband can prove (with copies of all the IR-1/CR-1 papers, bills from NVC) that an immigrant visa application has been submited for him.

You can also download a copy of I-539 (Application To Extend/Change Nonimmigrant Status) from here:

http://uscis.gov/graphics/formsfee/forms/i-539.htm

Folinskyinla

Hi:

He cannot file for an extension of the K-3 visa. If his K-3 admission expires, there is nothing to prevent him from filing an I-539 for extension of status. But there is no way to extend or renew the visa.

johnandrose

Sorry, my mistake - "status extension" not "visa extension".

But it does the same job, right? If his I-539 is approved, he is able to travel in and out of the U.S., just like a K3 visa holder without needing an AP, right? Or, am I wrong again?

If I'm wrong, then what should he do?

Folinskyinla

Hi:

An interesting question you pose. For travel to Canada or Mexico of less than 30 days, the unexpired I-94 or extended I-94 serves to extend the visa validity. I have no idea if this general rule applies for holders of expired K-3's or not.

As to travel elsewhere, one needs a visa or an AP to return to the US.

Megan

I was in the same situation - did not file AOS, and went the I-130 route. My husband's K-3 expired in October 2004, and his interview was February 2005. What is the date on your husband's I-94? That's the date that's important as far as his status, not the K-3. However, he cannot enter the US on an expired K-3. When he leaves for his interview, if his K-3 is expired, he can't return until he has his I-551 stamp, which he'll get upon approval of residency.

As for your tax returns...I only met the income requirements for the past 2 years as well. We had not issues, although I had a co-sponsor lined up incase...

Megan

CaliforniaBride

Aha! I was hoping you would join this thread. My K3 expires in January and I have just applied for AOS. My AOS may not be completed by January. I read somewhere that you advised obtaining Advance Parole for travel after the K3 has expired. Extending K3 status was unnecessary and a waste of money unless AOS had not been filed for some reason. I think I'm understanding now.

K3 status can be extended no problem. But K3 visa cannot.

When the K3 visa has expired (and AOS filed) then AP becomes necessary to travel. That is because travel without AP requires a valid K3 visa and extending K3 status does not extend the visa.

Is that something like it?

Folinskyinla

Hi:

The I-864 has TWO requirements:

The affiant must have income at 125% poverty level [or applicable assets]

AND

The affiant must submit the last three tax returns or give an explanation why they were not filed.

These are two SEPARATE requirements and should not be conflated. However, it is a common misconception that three years at 125% is needed. I recently had one adjustment in immigration court for elderly parent -- the family made nowhere enough money to meet the income guidelines -- but they owned their own condominium and had owned for some time. We put in informal Realtor appraisals which included as "comps" two sales in the same complex within the past 90 days. We went conservative, took the lower sale, and then 20% of the equity which clearly exceeded 5 x 125% of the needed sum. The Immigration Judge smiled and said "Thank God for Southern California Real Estate."


Bottom line: we had NO tax returns showing qualifying amounts, but the other evidence did the trick.

Rox4BrainsAsh

Thanks so far to everyone, y'all have been very helpful.

If the K3 status is extended, how does that affect the EAD? That isn't automatically extended either is it, I assume there's another form to file and another fee to pay?

Rox4BrainsAsh

Nevermind, answered my own question from the visa faqs. Can't believe I missed it.

"14.7)...What if my EAD expires before my application for Adjustment of Status is approved?
A..Apply for a new EAD. Make sure you apply well in advance, since processing may take several weeks or months.
If you have never applied for Adjustment of Status, then you will be required to show that your initial I-130 petition is still awaiting approval, or, if the I-130 was approved, that you have applied for an immigrant visa at a U.S. Consulate.
"

cindyabs

Also just a side note, the 539 as processed through NBC is currently a year behind us.

Rox4BrainsAsh

I thought we're to send it to the Service Center in our jurisdiction, that's what it says in the instructions. Is there something I missed?

cindyabs

Yes, apparently they've made a change but not updated the instruction sheet. It goes to Chicago.