AOS / Marriage / she has overstayed

[iverigma 0]

A week ago I finally got my citizenship. But my wife has already overstayed (her stay expired at 2007/8). So now we are filing for i485, i130...,etc. to adjust her status. Now my question is:

I became pretty nervous when I see this warning in the guide: "If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad" and a lot of people on this forum are saying the same thing.

But I think our case is a little different: when we married I was NOT a US citizen and there was 2+ years away from my eventual citizenship. Therefore for her to stay in US, there was no advantage whatsoever of marrying a LPR like me. Is it a valid argument if the interviewer questions her?

Thanks.

[saratara 0]

What kind of visa she entered in USA?

[Kathryn41 3,205]

Were you already married when she entered the US last? Or did you get married here?

[iverigma 0]

tourist visa

What kind of visa she entered in USA?

When she entered the US last time we were already married. We got married over 2 years ago and she's been using tourist visa to visit US several times.

Were you already married when she entered the US last? Or did you get married here?

[Dave and Helena 0]

If she overstayed with more than 180 days that will result in a 3 year ban if she leaves the country. I think that if she goes home you can apply for a "waiver" claiming extreme hardship for the USC to get her back in again but I don't know how hard/easy that is.

Your case has some issues, overstay and her being married when she last entered the country so if I were you I'd get a consultation with an immigration attorney.

[Minya's wife 25]

tourist visa

What kind of visa she entered in USA?

When she entered the US last time we were already married. We got married over 2 years ago and she's been using tourist visa to visit US several times.

Were you already married when she entered the US last? Or did you get married here?

If you were already married when she entered the US this last time, it is my understanding, that you cannot file AOS papers from here in the US. You must file the I-130, wait for that to be approved and move though the system. Then your wife must return to her home country to have the visa interview. Only then can she return.

You cannot use a tourist visa to adjust status, if you had intent to emigrate when you entered the country. She was already married to you...saying that she had no intent to emigrate because when she entered you were still only a PR does you no good....becasue they can see that she stayed until you got your citizenship so she can adjust status.

Good luck,

-P