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I filed for my wife but she has a tourist visa and I am permanent resident. Will she have to return for consular processing?

Long Island City, NY |

I read that permanent residents can petition for their spouse or children at the same time as the green card petition if they are here in the u.s. under a valid visa because of priority date being current for these months. I sent petition for my wife but she only has 3 months left on her tourist visa. Does that mean she will have to go back for consular process? I read on the department of state website that the date will go back to normal in a few months. I got my green card last year because of lottery, so citizenship for me is 4 more years. I just want to know if my wife should return after her tourist visa expires.

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Attorney answers 5

Best Answer
Posted

I agree with Attorney Solovyova. This question shows why it's a smart decision to always use an immigration lawyer. Although a visa number appears to be immediately available for the spouse of a Lawful Permanent Resident (LPR) applying for Adjustment of Status (AOS), the visa number is not assigned until the AOS application is approved. Therefore, a visa number must be immediately available both at the time the AOS application is filed AND on the date the application is granted. If a waiting line develops in the applicable category while the AOS application is pending, due to “retrogression” of the visa preference classification, then the application will be held in abeyance until a visa becomes available. This means that the AOS for some time. Once the application for Adjustment of Status (AOS) is filed, DHS will permit the applicant to remain in the United States while that application is pending. In this sense, the alien's remaining can be said to be "authorized." However, authorized stay does not mean that the stay is lawful. It only means that the applicant won't be removed from the United States. Although the stay is not technically lawful, no "unlawful presence" (this is a term of art) accrues as long as the AOS application is pending. So even if AOS is denied, the applicant won't have to worry about the 3/10 year bars so long as he (i.e. he or she) leaves the U.S. once notified of the denial of the AOS application. Once you file for AOS, you would normally be considered to have abandoned you application once you leave. It is imperative that you consult an immigration lawyer, and quickly.

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Dean P Murray

Dean P Murray

Posted

Typo - The statement "This means that the AOS for some time," should have read "This means that the AOS application may be pending for some time".

Asker

Posted

Thank you. I think that your answer was the most thorough answer. I'm assuming that you are meaning that even though my wife will not be in status, she will not have unalwful presence. Does not being in status when the visa is available again mean that she will have to go back to Turkey? I guess if she has to and there is no punishment for staying here, that can be ok too :-/

Posted

Yes your wife should return to her country when her tourist visa expires. It is best to consult an attorney.

Alexus P. Sham alexuspshamesq@gmail.com (917) 498-9009. The above information is only general in nature and does not constitute legal advice. It does not create an attorney-client relationship.

Posted

Your wife may be able to avoid consular processing. The visa category for spouses of permanent residents is current for September 2013 (it was also current for August 2013).

Since your wife is currently in legal status, she will probably be able to adjust her status in the United States if you file the I-130 and I-485 (along with other required paperwork) for her in September (or already filed in August 2013). If you wait till October, she may no longer have this opportunity as the category may retrogress.

As long as you properly filed for your wife and she qualifies, she will be able to stay in the country even if her tourist visa expires. But it is really important to consult an immigration attorney to make sure everything was filed correctly.

Posted

Hi,

Did you file I-485 adjustment of status application or only I-130 immigrant petition? I would definitely recommend you to talk to the immigration attorney as there are ways for your wife to stay here in the US and wait for her green card here. It is very time sensitive matter so hire an attorney right away at least for a consultation to make things right as at this stage it is very easy to make a mistake without a proper advise from an immigration attorney.

Posted

Apparently there is a misunderstanding here. LPR's are informed that since the visa bulletin for the months of August and September of 2013 for the 2A Category is current, they can petition spouses and children under 21, here in the United States hoping they may adjust here, even when their status is about to expire or has already expired. This is true even if they came with a visa. This is not the case. An I-485 could only be filed if the person is in status and maintains status until the adjustment is granted. In any event, I strongly recommend that you consult with a competent and experienced immigration attorney before you do anything.

Asker

Posted

Thank you. I feel more confused because all of the attorneys here are giving me different answers, followed by telling me to consult an experienced immigration attorney. Should I consult the experienced attorney that tells me what I want to hear?