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September 28, 2009

Ask immigration a question?

I have a client who asked immigration a question prior to hiring me. Here is their response, I have not edited it except for the name of the client and the post.;

Dear XXXXXXXX:

Please be advised that the Form I-130 confers no legal status to your wife. Therefore, assuming that it is approved, the approval will not allow her to remain in the US beyond the initially authorized 6 months. If she wishes to adjust status, then she would need20to file the I-485. During the pendency of the Form I-485, your wife will not accrue unlawful presence despite the fact that her authorized stay in the US as a nonimmigrant visa has expired. Likewise, if she files a timely, non-frivolous I-539 to extend her nonimmigrant visa stay, she also would not accrue unlawful presence during the pendency of the I-539 so long as she does not engage in any unauthorized employment. Even if she is approved to extend her nonimmigrant stay, there is no guarantee that she would be granted an extension until the Form I-130 is approved.

The decision regarding whether it is more prudent to file a Form I-539 or I-485 is difficult to answer. You may wish to ascertain if she qualifies to submit the Form I-485 while the I-130 is pending. If so, then the Form I-539 may not be necessary. You should also be aware that since she entered the US with a pending I-130, the Form I-485 adjudicator may find that she had a preconceived intent to immigrate to the U.S; therefore misrepresented her true immigration intent when she entered the US as a non-immigrant and deny the Form I-485. Assuming that she did not apply to extend her nonimmigrant stay or she was denied h er request to extend stay, then she would need to timely depart the U.S. before she begins accruing unlaw ful presence and/or deported from the U.S. If she is found have misrepresented her intent to a US government official, deported, and/or accrued unlawful presence of more than 180 days, then she may be found inadmissible into the US.

These matters are very complicated. Since we are unable to provide you legal advice, we recommend that you contact an immigration attorney for more comprehensive information on your wife’s case.

Regards
USCIS XXXXXXXX Duty Officer

Posted by VisaLawyer at September 28, 2009 09:45 AM

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