Marrying an illegal alien... please help!?

[Jessy_M 0]

Stas,

go and seek at least 1 consultation with immigrant lawyer in Seatle, before you marry

It can be difficult case because she is out of status for more than 180 days

you can get married, once you did, you will need to file 4 forms to USCIS

those are 1) affidavit of support (urs - make sure u have profits more than the poverty level) I-864

2) she needs to file the waiver (because she overstayed)

3) petition of the alient relative (i-130) - from u

4) she files the petition to adjust status (Form I-485)

+ if you would like to file 5) application for work authorization

6) travel

but those 2 only if she will need to travel back to russia, and work authorization, she will get separetly those only if the GC process will take more than 6 month

Make sure you file all needed documents WITH the package at first time (including the proof the bona fides of the marriage and medical report) this is important

[lucyrich 20]

If a J-1's I-94 is for Duration of Status (written D/S on the I-94), as many J-1's are, then the 3 and ten year bars for 180 days or 1 year of illegal presence do NOT start when status ends. see http://www.immigrationlinks.com/news/news729.htm

students, exchange visitors, information media representatives ("I" visa holders), and holders of certain diplomatic visas are usually admitted for "duration of status" (D/S). An alien admitted for "duration of status" will begin to accrue unlawful presence only if either:

* an Immigration Judge (IJ) finds the alien has violated status and is excludable/deportable/removable, or

* the INS, in the course of adjudicating an application for a benefit (e.g., extension of stay or change or adjustment of status), determines that a status violation has occurred.

Furthermore, regardless of whether there's a fixed expiration date or a D/S I-94, the bar is only incurred after the alien leaves the US. The following quote is from the same link presented above:

The three- and ten-year bars of 9B1 and 9B2 are triggered by a departure from the U.S. following accrual of the specified period of unlawful presence. If an alien accrues the requisite period of unlawful presence but does not subsequently depart the U.S. (e.g., in the case of an alien applying for adjustment of status with the INS), then 9B would not apply.

So there are two reasons there would be no bar to admissibility: the clock probably hasn't started ticket for the illegal presence bars in 9B, and even if it has, the alien can adjust status without leaving the US, so no bar will be incurred. Since no bar is incurred, no waiver will be required.

You may want to carefully read the link above, and you should verify the above with a lawyer, but you should be good to go. Just don't allow the alien to leave the US until the green card is in hand. And don't bother with advance parole -- wait for the green card before leaving the US.

[Jessy_M 0]

If a J-1's I-94 is for Duration of Status (written D/S on the I-94), as many J-1's are, then the 3 and ten year bars for 180 days or 1 year of illegal presence do NOT start when status ends. see http://www.immigrationlinks.com/news/news729.htm

students, exchange visitors, information media representatives ("I" visa holders), and holders of certain diplomatic visas are usually admitted for "duration of status" (D/S). An alien admitted for "duration of status" will begin to accrue unlawful presence only if either:

* an Immigration Judge (IJ) finds the alien has violated status and is excludable/deportable/removable, or

* the INS, in the course of adjudicating an application for a benefit (e.g., extension of stay or change or adjustment of status), determines that a status violation has occurred.

Furthermore, regardless of whether there's a fixed expiration date or a D/S I-94, the bar is only incurred after the alien leaves the US.

she was on the work and travel program, so she had to be back to Russia before 1st of Oct. (official date of end of the program by USA gov.) so any 1 day she overstayed it was unlawful presence

there are different rules for W&T program visas even if they are J1 as well

So there are two reasons there would be no bar to admissibility: the clock probably hasn't started ticket for the illegal presence bars in 9B, and even if it has, the alien can adjust status without leaving the US, so no bar will be incurred. Since no bar is incurred, no waiver will be required.

You may want to carefully read the link above, and you should verify the above with a lawyer, but you should be good to go. Just don't allow the alien to leave the US until the green card is in hand. And don't bother with advance parole -- wait for the green card before leaving the US.

1) you are wrong - as she is under special rules so her "clock" started ticking that is why she HAS to apply for waiver

2) you are right they HAVE to apply wihtin the country with out even have the crazy thought of leaving and applying for the spouse visa, because she overstayed J1

[lucyrich 20]

1) you are wrong - as she is under special rules so her "clock" started ticking that is why she HAS to apply for waiver

Are you saying the I-94 has a specific expiration date? If so, then yes, the clock starts ticking. If the I-94 has "D/S" written on it, then the out of status time under INA 212a9B only starts when one of the events listed in that link happens. There are no "special rules" regarding this point, but what matters is whether I-94 has a specific expiration date written on it or is valid for "Duration of Status" (D/S).

However, regardless of whether the I-94 has an expiration date or not, there is no waiver needed (or available) unless and until she's declared inadmissible. And the 9B bars don't apply unless she leaves the US. If she stays within the US until receiving the green card, there is no waiver to apply for. So the point about whether or not her I-94 has an expiration date won't matter if she doesn't leave the US.