Starting AOS over...bummer

[MarcRosie]

If some of you've been following, lawyer messed up our app. I need to call USCIS tomorrow (per USCIS employee suggestion...30 days and no action) and see where we are at. But as I read everything I have a question. Rosie legally doesn't have a visa. The K1 expired (Feb 19) 90 days after she entered the U.S. Is she still able to go forward with the I-485? On the 485 the attorney typed in OVERSTAY as the status of her visa. Your thoughts? Sorry I ask so many questions. I just need to make sure I do everything right after he botched it the first time.

Additionally, does someone have a link of a site that shows us exactly what we need to do to file the I-130 for her unmarried daughter that's 20 years old? What papers do we need to send in for that when we can send them in. We are going to do this all on our own. No more attorneys.

[credzba]

If some of you've been following, lawyer messed up our app. I need to call USCIS tomorrow (per USCIS employee suggestion...30 days and no action) and see where we are at. But as I read everything I have a question. Rosie legally doesn't have a visa. The K1 expired (Feb 19) 90 days after she entered the U.S. Is she still able to go forward with the I-485? On the 485 the attorney typed in OVERSTAY as the status of her visa. Your thoughts? Sorry I ask so many questions. I just need to make sure I do everything right after he botched it the first time.

 

Additionally, does someone have a link of a site that shows us exactly what we need to do to file the I-130 for her unmarried daughter that's 20 years old? What papers do we need to send in for that when we can send them in. We are going to do this all on our own. No more attorneys.

 

I read the "Instructions for I-485" available at http://www.uscis.gov/files/form/i-485instr.pdf and I am sure you saw them when you downloaded your I-485 form.

For a spouse, the only requirement is that you both be residing in USA when you file for adjustment of status.

The overstay of the K1 visa will be forgiven, though you might include a note explaining what happened, and that the original filing date was within the 90 days.

I am certain that the original filing will be in their records.

 

Just get it in gear, and turn in the required paperwork.

[dnoblett]

Not a problem filing AOS after the allowed 90 days of the I-94 card. Overstay is automatically forgiven.

 

One note, if overstay exceeds 180 days past the I-94 expiration then dont bother filing an I-131 for an AP document for travel while waiting for I-485 to be approved, the travel doc will not prevent a bar on re-entry based on the overstay.

[Randy W]

If some of you've been following, lawyer messed up our app. I need to call USCIS tomorrow (per USCIS employee suggestion...30 days and no action) and see where we are at. But as I read everything I have a question. Rosie legally doesn't have a visa. The K1 expired (Feb 19) 90 days after she entered the U.S. Is she still able to go forward with the I-485? On the 485 the attorney typed in OVERSTAY as the status of her visa. Your thoughts? Sorry I ask so many questions. I just need to make sure I do everything right after he botched it the first time.

 

Additionally, does someone have a link of a site that shows us exactly what we need to do to file the I-130 for her unmarried daughter that's 20 years old? What papers do we need to send in for that when we can send them in. We are going to do this all on our own. No more attorneys.

 

 

The answer to "In what status did you last enter?" is K-1, not OVERSTAY. The form does not ask the current status of her visa.

 

The worst case is that you may be required to file an I-130, which did happen in another case where the first I-485 was rejected.

 

Your wife will have to wait for her AOS before she can file an I-130 for her daughter.

[dnoblett]

About the 20 year old daughter. She is less than 21 correct??

 

How long ago was the K-1 issued?? If less that a year ago I would be making a fast move to get her a K-2 follow to Join, get her over here ASAP BEFORE Age 21, and have her ADJUST STATUS Based on a K-2 visa an your marriage...

 

If you hold out until wife has green-card and the WIFE will have to file I-130 for Unmarried child of LPR which will hake YEARS to get.

[MarcRosie]

First off, my attorney never told us that we had to file within 90 days. I know...I should've known, but I guess I was thinking an immigration attorney would direct us in the correct way. I'm seeing now that he was far from giving us correct directions.

 

Her daughter was here last year for a few weeks under the K2. But had to go back to England because that's where she's going to college. Is the K2 still valid?

 

I went on to the USCIS site and punched in the info for an LPR doing the 130 for an unmarried child under 21 at the California office and it said 5 months to process. I've heard that it can take years, but why then do they publish it will be processed in 5 months?

 

The 485 has not been rejected. In fact we have not heard anything from USCIS on the packet we sent. But speaking to the USCIS employee, they said it probably was just returned without any processing. They suggested that we just go ahead and send in another packet with the proper paperwork. I know...this sounds strange. I'm calling in today as it's been 30 days without any notice/action.

 

I believe the K1 was issued in July 2010.

[Randy W]

First off, my attorney never told us that we had to file within 90 days. I know...I should've known, but I guess I was thinking an immigration attorney would direct us in the correct way. I'm seeing now that he was far from giving us correct directions.

 

Her daughter was here last year for a few weeks under the K2. But had to go back to England because that's where she's going to college. Is the K2 still valid?

 

I went on to the USCIS site and punched in the info for an LPR doing the 130 for an unmarried child under 21 at the California office and it said 5 months to process. I've heard that it can take years, but why then do they publish it will be processed in 5 months?

 

The 485 has not been rejected. In fact we have not heard anything from USCIS on the packet we sent. But speaking to the USCIS employee, they said it probably was just returned without any processing. - this would be a rejection They suggested that we just go ahead and send in another packet with the proper paperwork. I know...this sounds strange. I'm calling in today as it's been 30 days without any notice/action.

 

I believe the K1 was issued in July 2010.

 

You do NOT have to file within 90 days. However, you may be questioned about WHY you are filing so late. You HAVE a good answer.

 

K-2 is a single entry visa - it may not be used for a second entry

 

The visa bulletin provides information on the length of a wait (AFTER the USCIS processing is done) for an available "visa number". I-130's filed in April, 2007 are just now becoming current. Visas are issued by the Department of State, not the USCIS. Official information is USUALLY (as it is in this case) more accurate than hearsay.

 

So I-130 petitions for children of an LPR filed in April, 2007 are just now being sent to Guangzhou for processing.

 

If you want to check on the status of your previous application, make an InfoPass appointment. They will be able to tell you if there is any record of it.

Edited May 16, 2011 by Randy W (see edit history)

[dnoblett]

Ouch, had a K2 used it and did not adjust. It cannot be used a second time, that option is closed.

 

Its going to take a few years to get step child a visa to innigrate, as Randy indicated about 4 years, however it probably will take longer, CSPA freezes age at time of filing for a limited time and may still age out and fall into unmarried child of a LPR age 21 and older which is like 10 years to get immigrant visa.

[warpedbored]

As you have already surmised your lawyer is an incompetent ass. Daughter should have never left the US until after filing AOS. Since she is K-2 her age is not protected by the Child act. It is highly unlikely that she will be able to obtain another visa and adjust status before she turns 21. It may be worth a shot though. If she interviews in England they may process faster. Then there is the issue of ageing out before her AOS. A lot of people are fighting the USCIS in court because K-2s aged out before there cases are processed. If this happens your wife will have to wait until she has her green card to file an I-130 for unmarried daughter over 21. As Dan pointed out this is about a 10 year wait. If she becomes a US citizen in 3 years this would shave off a couple of years.

[dnoblett]

As you have already surmised your lawyer is an incompetent ass. Daughter should have never left the US until after filing AOS. Since she is K-2 her age is not protected by the Child act. It is highly unlikely that she will be able to obtain another visa and adjust status before she turns 21. It may be worth a shot though. If she interviews in England they may process faster. Then there is the issue of ageing out before her AOS. A lot of people are fighting the USCIS in court because K-2s aged out before there cases are processed. If this happens your wife will have to wait until she has her green card to file an I-130 for unmarried daughter over 21. As Dan pointed out this is about a 10 year wait. If she becomes a US citizen in 3 years this would shave off a couple of years.

 

Only issue I see with the K-2 situation was the fact K-2 Child was attending college in England and needed to return to college. Would have done one of two things in that situation.

• See if could transfer course credits to a University in the states, came here on K-2 and stayed.
• OR see about taking a year or so off, got the green-card, then returned to college, (Not sure if this would constitute abandoning the green-card, due to attending college may not be considered to be "Living overseas permanently" if had a problem with green-card, could always tried for a returning resident visa at the embassy in London.

This has to be the biggest case of gross incompetence I have seen from a lawyer in some time.

Edited May 16, 2011 by dnoblett (see edit history)