Q: Our concurrent I 130 and AOS application got rejected twice. Is it safe to re-apply but just the Petition or I130 first?
I petitioned my wife and she also filed her AOS together with the I -130, she was in J1 visa. Unfortunately, it was rejected twice and because she wasn't able to send the form I-944. She is now out of status, but her visa is NOT subject to a 2 year home residency rule. Now if we will try filing it once more, but instead of filling it concurrently, I will just petition her first, submit to the I-130 and wait to get an approval. Would this will be acceptable. Since we have a record to them that we improperly filed I130 and AOS together but it was rejected? Her concern is also it may be rejected again or worse she will get deported or not allowed to file again for a year or so. We are extremely concerned and worried because she has already overstayed. If she were to go back home, we are afraid it will be difficult for her to come back here again.
Although you can technically file the I 130 first, the I 485 and related documents have to be filed in order to obtain legal status for her. Filing separately will just be a waste of time and the I 130 itself will not protect her stay here. I recommend you speak to a qualified attorney about the exact specifics of your case.
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You can file the I-130 first, but it will double the amount of time it will take for your wife to get her green card, and she will be at risk for deportation.
While it could be difficult for her to come back if she leaves the country, it depends on whether she’s stayed more than six months beyond the amount of time authorized. We recommend that you consult with an immigration attorney about your case.
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