I-130 is Approved...What can she do now?

Hi Reba,

I have been reading your forum for over a year now, and I have to start by saying thanks for all the advice, be it in the form of other's questions being answered.

Here's my issue:

I am a US citizen, born and raised, serving in the US military. My wife and I were married six years ago, but until last year, she simply went back and forth between our home in the states, and her parents home in Hamilton, Ontario every 2-3 months to maintain a valid B2 visitor status (the whole six month visitor thing). The technical rule I learned from a friend who works for US Border Patrol is that if she exits for the country for more than 48 hours, it resets her six month counter, so she would go home for two weeks, and then return home. This in effect allowed her to live in the states without a green card.

She has recently finished up her university work, however, and is eager to start working here in the states. We filed for her I-130 application in Dec 2007. I just received her application approval letter yesterday. I know that during the application process, they told us that she could not leave the US as this would be considered "abandoning her application", which didn't make much sense, but seeing as I work for the government, and know that not much of what they do makes much sense, we went with it. This means she has been here for almost a year now, which technically violates her B2 status, but since they told her it was required, I don't really understand that.

That all being said, my question for you is this: now that the I-130 is approved, and we are simply waiting for NVC to send her the Visa documentation, is she able to go home and see her family? I am getting stationed in Honolulu, Hawaii in Jan 2009, and she really wants to go home before we move out there. I am unsure of how the NVC is going to look at this, and if anybody else has an answer, we would be immensely grateful.

Thanks,
Nick B.

Have a read of the instructions for I-131 as this may answer your question.

The guy in the Border Patrol is wrong, it's six months in a calendar year, but they didn't (until last month and it's still very spotty) keep any records of when Canadians left so it's hard to enforce as they don't require a visa simply to visit.

Usually the trick is to file the I-130, then visit (up to six months a year) while the petition is pending. Once it's approved, you leave, do the interview, get the visa and re-enter. I'm just wondering what the response at the interview will be if she says she's been in the country all that time.

You can adjust status if the number comes up while lawfully in the US, but you have to wait for it to be completed before leaving, which is the problem you've got so I'm not helping you by saying that!

A better answer to this question will be on www.visajourney.com

Ok, colour me confused. If you filed the I-130, didn't you also send in the I-485 for adjustment of status, I-765 employment authorization and I-131 for Advance Parole so she could adjust status for a green card? Or did you just send in the I-130 all by itself and nothing else? What did you put for what type of benefit you're petitioning for her, and where did you say she would go for an interview?

If she's in the US waiting for the petition to be approved, you should have included all that other stuff with the petition as well, otherwise AFAIK, she will have to return to Candaa for an interview in Montreal. And your CBP friend gave you some bad information, as Steve posted above. Its all in the interpretation and mood by each CBP, and she has been damn lucky she hadn't been denied entry and banned.

Without knowing what you put on the I-130 for benefit and where you intend to interview, I'm sorry I can't offer much more info than that.

For more detailed information on marriage based immigration to the US you might want to check out the forums and guides at http://www.visajourney.com