Noorah101

If she is getting an Immigrant Visa, then adjustment of status does not even apply to her. She will become a US permanent resident when she enters the USA using her immigrant visa. No adjustment of status required.

If you mean when the case reaches NVC, she is allowed to stay in the USA while it processes, that is not true.

Rene

partyank

That has been an issue with me and hence hired an immigration attorney. He stated and I have read it somewhere on the USCIS website she can stay while the case is being determined. We initially requested an extension on her i-94 as instructed by USCIS but was informed you can have either a i-94 (which no longer you get flying into the USA) OR have a i-130 application in place. As the i-130 was in place the attorney had the i-94 extension application terminated within the USCIS system. I do have records for that.

Should this turn to custard I'm not sure what the next steps, I have dropped a note to the attorney as well, it does concern me with her leaving prior to a resolution, which he had previously stated she should not do. This process has taken since August 2012.

Noorah101

That is only for an Adjustment of Status case. Your wife is doing an Immigrant Visa process. As a B-2 visa holder, she is a tourist in the USA, and must leave by the date she was given at the POE. I-94's are not given at the POE anymore, but that information can be found online (I dont' have the link handy, sorry). An application for B-2 extension can be done, she is allowed to stay in the USA until a decision is made on the extension.

USCIS instructed her to do a B-2 extension? I am not sure what the rest of your sentence refers to...it's not very clear.

That was not the right thing to do, in my opinion. So now she's been in the USA on a B-2 visa, with no extension approved. You still have not told us what the date of her last entry was to the USA...that information would be very helpful.

But a resolution to WHAT, exactly? In order to follow through with the Immigrant Visa process, she must leave the USA and attend an interview outside the USA. If she has overstayed her time in the USA by more than 6 months, there will be a 3-year ban in place when she leaves. If she's overstayed more than 1 year, it's a 10-year ban.

Part of that reason is that there is a backlog in the category of "spouse of LPR", so it took some time for her priority date to become current. Now that her priority date is current, she is being asked to attend an interview overseas. This process sounds like it was on track, as it does indeed take about a year and a half for the spouse of an LPR to get a visa interview.

The problem is that it sounds like she stayed in the USA beyond the date she was supposed to leave, and THAT causes issues.

Now that her priority date is current, I suppose you could try to do the Adjustment of Status process, which means cancelling the overseas interview and filing all the necessary documents for an AOS case in the USA.

But don't do anything or take any action until you consult with a DIFFERENT immigration attorney. From what I can see, this one you've got is not doing the best job for you.

Rene

ian-mstm

No, she isn't... and whoever told you that really screwed you over! The only way this could happen is if you also filed a concurrent I-485... and we've no idea whether or not you have. If it was a lawyer to told you she could stay after filing an I-130, I suggest you sue him - because he's totally incompetent.

As it stands right now, she has overstayed her visa - and she may likely face a ban on returning to the US if she leaves for any reason whatsoever. I suggest you consult a different immigration attorney.

Ian