Matthew Udall

I believe their procedure is stated right in the regs (once the I-130 is approved, you file for AOS or go to the U.S. Consulate for an immigrant visa). Now if an office makes an "exception" to that policy, that's great but I would not count on an exception being made at any given office (not even one that made an exception in the past).

Buendia

I think I was confused by what I was reading in the Visajourney FAQ (used as the FAQ for this site) which says this:

"14.1)...How soon after we arrive in the U.S. should we apply for Adjustment of Status?
A..For most people, this will be "as soon as possible". The USCIS (INS) has made an assumption that nearly all K3/K4 folks will want to apply for AOS, even though a few will still choose to apply for an immigrant visa at a Consulate outside the United States. "

and later says this:
"14.4)...How do I file for Adjustment of Status from a K3 and what forms do I need?

# If your I-130 petition has not been approved, send a copy of the I-130 petition. You probably should send a copy of the I-797 Notice of Action showing the I-130 was filed, because that is the proof of filing. If the I-130 has been approved, send a copy of the I-797 showing the I-130 was approved."

To me this implies it's ok to file for AOS without an approved I-130, and that this should be done, in the words of the FAQ, "as soon as possible." Not knowing the process very well, I may have read more into it then was intended.

I think we're just going to wait until our I-130 is approved. But I'm so glad this has been discussed on this NG; I feel like I'm better informed now about the I-130/AOS/consular process. Thanks to everyone for their input.

cindyabs

I don't count on it either, it is just nutso, . Atlanta is one of those that allows you to file for AOS w/o an approved 130. Why? I don't know? However, their AOS backlog is such (currently 3 years), that one has to look seriously at Consular Processing. So for many of us K3ers, if you don't have an approved 130, one thing for sure there's a good chance that it could expire and the EAD as well (even the new long terms ones!) Sigh.
Meanwhile back at the ranch there are folks getting AOS in a MUCH shorter timeframe. Same old story of inequality based on where you live and what office you have to deal with. I know I'm preaching to the choir but this is so much like "Who's on first, I don't know......... third base........................"

hcj1440

What's even more confusing is that the news release on the CIS website, which is the only thing I've ever been able to find on their site dealing with this question, seems to say that you can and should file AOS after you get here with a K-3.

From http://uscis.gov/graphics/publicaffa...life081401.htm
"To obtain immigrant status --once in the United States -- a K-3 nonimmigrant must file a Form I-485 (Application for Adjustment to Permanent Residence)... K-3/4 nonimmigrants will become lawful permanent residents and receive their Green Card when both the Form I-130 petition and their Form I-485 application have been approved."

I know it doesn't say it directly but seems to me that "once in the United States" means soon after you get here on your K-3. And the fact that it goes on to say that you will get your GC when both I-130 and I-485 is approved - doesn't that imply that the I-485 is submitted without a new I-130 and definitely before the original I-130 is approved?

Buendia

Now I'm even more confused...

I wish there was more concrete info on the USCIS website. I wish I knew more about this, I wish I was smarter, I wish I had more time to figure this out... My real job is really interfering with this immigration stuff

hcj1440

I know what you mean - those pesky jobs!

Buendia

My husband, who doesn't have his EAD yet and can't have a real job, is out on his road bike - I'm so jealous! (Actually he'd love to get his EAD and have one of those pesky jobs... he can have mine if he wants!)

hcj1440

I suppose the grass is always greener... I would love to be out on a road bike right now! Jobs are pesky but I do like those paychecks. :-)

Matthew Udall

Sounds like that FAQ (which did not come from the USCIS) could use some modification. That is the danger of taking legal advice from strangers on the net (and yes, telling someone what forms to file and when to file them in order to achieve a benefit from the Government under immigration law "is" legal advice). You never know what sort of unwarranted assumptions have been made (or their trying to turn something into a "one size fits all" situation) when formulating their legal advice.

Matthew Udall

You are not limiting your analysis to what they actually wrote, and instead are reading in that "once in the U.S." means "soon after". Someone's I-130 "could" be approved "soon after" they enter, or perhaps it will take a while longer than that. I don't know how you came up with the assumption in your last sentence. Even when someone is here on a different type of visa and they file an I-130 and I-485 together at their local USCIS office, the I-130 is approved virtually at the same time as the I-485.

So they are saying when the I-130 is filed separately at a Service Center and the K-3 entrant is here in the U.S., that person will receive their permanent resident status once the I-130 is approved and the I-485 is approved. That paragraph talks about "when the permanent resident status can be approved" and does not address whatsoever the issue of the timing of "the submission" of each form.

The "I-129f K-3 petition" is submitted sometime after the filing of the I-130, while its still pending at the Service Center, but I don't see anything in their quoted language above that leads me to believe they are telling people to file the I-485 before the I-130 is approved. But again, if a local office makes an exception to this procedure, or accepts a new I-130 to go along with the I-485, that's fine with me.

hcj1440

Hi Matthew -

Thanks for the explanation. I am confused no longer.

If you don't mind my asking, does INA 245.1(c)(6)(ii) contradict what the OP,
mdaitc, was told in his denial letter? I was told that K-3'ers are permitted to adjust in the following manner, without having to have the I-130 be approved before submitting I-485:

[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.

[end quote]

Matthew Udall

Yes, I saw what you posted in the other thread as to what a CIS rep said. I've not yet processed an AOS for a K-3'er, so I defer to his or her statement (with a grain of salt, and thanks for sharing). As to whether or not that contradicts what happened to the OP, I'll leave that up to others to answer.