B1 Visa-Holder, Married to a citizen and confused about the entire process!

[littleannie84]

Here are my details:

CITIZENSHIP: Filipina/Philippines
VISA TYPE: B1/B2, Multiple entry
VALIDITY: Through 2017
MARRIED TO: Natural-born, American Citizen
MARRIAGE DATE: April 1, 2005
COUNTRY OF MARRIAGE: Philippines
US ADDRESS: Los Angeles, CA

Okay, so finally, after years of marriage and travelling 3-4 times a year to the U.S. on a B1/B2 Visa, we finally decided to apply for change of status (to permanent residency). I believe I have the process down, (I can file for my I-130 and I-485 concurrently and have all the documents USCIS needs), but what I am confused about is this: I called USCIS to make sure I understand everything correctly, and when I asked how long the processing time of complete and correct paperwork from the time they receive it is 7-8 months. Because of work, I have to travel to the Philippines every 3 months for 3-5 weeks at a time. So I asked if I could travel back while my application is being processed. So their answer is, "You have to file for Form-131 Application for Travel." They continue to add that if I send this application together with my I-130 and I-485, the $385 fee will be waived." But I do not see any mention of this on any website.

So I go on to read the I-131 instructions, and here is the part I am confused about:

"If you are in the US and wish to travel abroad, you do not need to apply for advance parole if both conditions described below in A and B are met:

A. You are in the following non-immigrant categories:
1. A K-3, spouse, or K-4, child of a U.S. Citizen -- I am a spouse

B. Form I-485, Application to Register Permanent Resident or Adjust Status, was filed on your behalf and is pending with the USCIS. -- So, should I have someone else file I-485 for me?

However, upon returning to the US, you must present your valid H, L, K, or V non-immigrant Visa to continue to remain eligible for that status." -- So even if I am a spouse of a citizen and a tourist visa holder, I HAVE to apply for I-131 in order for my change of status application to remain valid?

I have not filed any paperwork yet, but I want to do it soon. Help please?What is the name of your state (only U.S. law)?

 

[evcalyptos]

Here are my details:

CITIZENSHIP: Filipina/Philippines
VISA TYPE: B1/B2, Multiple entry
VALIDITY: Through 2017
MARRIED TO: Natural-born, American Citizen
MARRIAGE DATE: April 1, 2005
COUNTRY OF MARRIAGE: Philippines
US ADDRESS: Los Angeles, CA

Okay, so finally, after years of marriage and travelling 3-4 times a year to the U.S. on a B1/B2 Visa, we finally decided to apply for change of status (to permanent residency). I believe I have the process down, (I can file for my I-130 and I-485 concurrently and have all the documents USCIS needs), but what I am confused about is this: I called USCIS to make sure I understand everything correctly, and when I asked how long the processing time of complete and correct paperwork from the time they receive it is 7-8 months. Because of work, I have to travel to the Philippines every 3 months for 3-5 weeks at a time. So I asked if I could travel back while my application is being processed. So their answer is, "You have to file for Form-131 Application for Travel." They continue to add that if I send this application together with my I-130 and I-485, the $385 fee will be waived." But I do not see any mention of this on any website.

So I go on to read the I-131 instructions, and here is the part I am confused about:

"If you are in the US and wish to travel abroad, you do not need to apply for advance parole if both conditions described below in A and B are met:

A. You are in the following non-immigrant categories:
1. A K-3, spouse, or K-4, child of a U.S. Citizen -- I am a spouse

B. Form I-485, Application to Register Permanent Resident or Adjust Status, was filed on your behalf and is pending with the USCIS. -- So, should I have someone else file I-485 for me?

However, upon returning to the US, you must present your valid H, L, K, or V non-immigrant Visa to continue to remain eligible for that status." -- So even if I am a spouse of a citizen and a tourist visa holder, I HAVE to apply for I-131 in order for my change of status application to remain valid?

I have not filed any paperwork yet, but I want to do it soon. Help please?What is the name of your state (only U.S. law)?

It's hard to know where to start with this except to tell you that you had better WAIT to file your paperwork until you understand what you are doing. Based on a couple of things you wrote, you should strongly consider getting a lawyer to help you file your case.

The B visa is not meant for you to adjust status from; when you use it to enter, you are stating or implying that you are here for the terms of your visa, which include NOT immigrating on that visit.

If you choose to adjust status and remain, you must wait for a new travel document (and work permit if you'll be working). These applications can take up to 3 months from filing, and if you leave before receiving Advance Parole, you forfeit your case.

You are misreading the 'spouse' line in the instructions.. you are not a K-3 spouse, you are just a spouse.. that refers to spouses who entered with a K-3 visa.


"However, upon returning to the US, you must present your valid H, L, K, or V non-immigrant Visa to continue to remain eligible for that status." -- So even if I am a spouse of a citizen and a tourist visa holder, I HAVE to apply for I-131 in order for my change of status application to remain valid?"

Yes, that's right. The visas listed are valid dual-intent visas.. yours is not. You are supposed to be here as a visitor, not an immigrant.

"They continue to add that if I send this application together with my I-130 and I-485, the $385 fee will be waived." But I do not see any mention of this on any website."

Then you are not reading the website correctly. You need to very carefully read the form download pages "special instructions" where this is specifically addressed.

Considering your travel schedule, you might want to consider applying for an Immigrant Visa at home. If you want to stay with the adjustment of status, you will definitely need AP, and you really should take a consultation with a lawyer, at minimum, to make sure there are no potential problems in your case.