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I-539 denied, visa still valid but -94 stay expired, 1-485 1-130 pending. what to do?
Anonymous1 views1 answers
I'm a US citizen, got married in China. Husband was granted B-2 visitors visa to come with me to visit my family for the summer. We had not intended to immigrate, but due to my pregnancy and other family matters, we ended up coming back to the US after a short return to China and have since applied for adjustment of status for him (I filed I-130 with I-485 and also I-539 as his 6 month visit approval on I-94 was to expire in Feb.).
We received the I-539 denial telling him to leave within 30 days because he's no longer in B2 category, as he's intending to immigrate. I-130 and 485 are still pending. We have a 3 month old and a toddler at home and I have a job. Returning to China is the worst thing that could happen right now.
Can he appeal or apply for an immigration visa? any options?
tuart Jonas ReichImmigration AttorneyNew York, NY ·
I strongly suggest speaking with an immigration lawyer about your case - in particular, the timeline of events is critically important here, and you may have some problems of which you're not yet aware.
I'm not at this point as concerned about the I-539 denial. With an I-130/I-485 on file and pending after a valid entry with inspection (it appears your husband entered on the B-2 and was issued an I-94 card at his last entry), he arguably is still protected and absent any other problem can adjust status here. He doesn't necessarily need to leave as the I-539 denial instructs.
What concerns me is this: you say you both reentered after a short return to China and then you filed the I-130/I-485 for him. While at the first entry it sounds like you/he honestly just wished to visit (and so this wouldn't be a problem), it isn't clear whether you both (in particular, your husband) intended to stay at the second entry. It also isn't clear how soon after this entry the I-130/I-485 was filed.
I'm concerned about an accusation during adjudication of the green card case that the more recent B-2 entry was fraudulent - something USCIS might infer from the time line and certain other evidence.
I strongly suggest speaking with a lawyer.
