AOS for spouse on overstayed visa

[M Trott 0]

It has been years since I have participated on this forum. I processed my wife's CR-1 via DCF in 2004 and she is coming up on 4 yrs being in the US. A couple years later I processed my wife's 2 childrens applications via I-130 filed here in the States and they will have been here 2 years coming up in May. I used various sources to help with both processes as I took care of all the processes for both cases by myself, but I remember this site as being a wealth of resources in completed these processes. Thanks to all for the help that is now years old.

Now with that out of the way, I was hoping to find out how valid my perceptions of past still are. We have an aquantance that has been in the US for around 7 yrs and originally arrived here on a student visa. My understanding is that she has significantly overstayed that visa but is still here and has been continuously. She has plans to get married to a US Cit this Friday. They plan to file to start the process to get her residency.

That all sounds like an AOS with her in the US from my past understandings. I am curious on the opinions on what the process is with her status of overstaying her visa and being in the US as it relates to completing the process to a point where she is "legal" and at what timing they might expect for the various stages up until she actually reached a CR-1 status or some equivalent. They seem to be under the illusion that the process is maybe months long and I am thinking we are talking years with several points of complication due to her overstaying her original visa. I am not even certain what the process will be with the current status complications, but my guess has been years

Thanks in advance for general comments and/or opinions on the scenario.

Mark

[Kathryn41 3,205]

If she arrived legally and was 'inspected' upon entry as she was when she arrived on her student visa, then when she marries a US citizen and is approved for her AOS her out of status overstay time will be 'forgiven'. It is very important that she applies for AOS as soon as possible after her marriage as she will be out of status until that time. Once she files, her status will become "AOS applicant". On no conditions should she leave the country until she has her green card in hand. With her overstay if she left the country without her approved green card she would incur a 10 year ban on re-entry. There is no real point for her to apply for an AP with her AOS since even though USCIS will issue it, the border guards would not allow her back into the country. The AOS processing takes months, not years generally, although there are exceptions based on delayed security/FBI checks or other issues. It is hard to predict the exact time frame.