Illegal immigrants may file for permanent stay?

[belinda63 3,038]

To adjust status from within the US you must have entered with inspection and be an immediate relative of a US citizen.

[Boiler 45,520]

There are other routes, adjustiing for work visa's and of course CoR for example.

[justashooter 430]

calling an illegal alien and undocumented immigrant is like calling a drug dealer a pharmacist.

[Brother Hesekiel 2,236]

Not every drug dealer is a pharmacist, but every pharmacist is a drug dealer.

Say no to drugs they say. Allrighty then . . .

[JimVaPhuong 4,863]

But note that what you say is contrary to the definition of "immigrant" as found in the law. According to INA 101(a)(15), The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens .... It goes on to list all of the possible legal non-immigrant statuses. Thus, a non-citizen of the US who is in the US without any lawful status is considered an "immigrant" according to the legal definition.

The term "alien" is also precisely defined in INA 101(a)(3), The term "alien" means any person not a citizen or national of the United States.

All immigrants are aliens. All aliens without a documented legal non-immigrant status are immigrants.

Noncitizens without documented legal status are both "aliens" and "immigrants" according to the law.

Section 101 is meant to define the terms as they are used in the Act. If you take those definitions and apply them outside of the text of the INA then a farmer living in Spain is an immigrant because he is an alien without non-immigrant status, even if he is not in the US and has no intention of ever going to the US. In fact, according to the definitions in Section 101, every person in the world who is neither a US citizen or national, and who does not fall into one of the non-immigrant categories, should be defined as an "immigrant".

Yes, you could make the argument that someone who enters the US illegally is an "immigrant" because, even by Webster's definition, they are entering the country with the intention of residing here. You could also make the argument that they are undocumented because, technically, it's a fact. However, I wasn't arguing against the technical accuracy of the terms since both "undocumented immigrant" and "illegal alien" are technically accurate. I was arguing against the reason the term "undocumented immigrant" was conjured up, and use of the more traditional "illegal alien" was heavily discouraged - to cover up the fact that they committed a crime when they entered the US without inspection, and to imply that they are no different from any other immigrant aside from the fact that they lack some paperwork.

[Sc0tt28 26]

Minor correction: when you say "the overstay is forgiven" it almost sounds like the USCIS grants some sort of pardon or something. In fact it's that Congress provided for no penalty whatsoever for an overstay unless and until the overstayer leaves the US. See INA 212(a)(9)(B). If the overstayer files for adjustment of status, the USCIS cannot deny the adjustment of status without grounds, and the law doesn't provide any such grounds, at least not based on the overstay (there may be some OTHER reason to deny an adjustment, of course).

If someone overstays, then files for adjusment of status and then leaves the US before adjustment is complete, then INA 212(a)(9)(B) does make that person inadmissible, regardless of whether he/she has advance parole. So an overstayer should NOT leave the US until the green card is in hand.

It's the way Congress wrote the law. It's kind of a perverse incentive for overstayers to remain in the US. But only Congress can change it.

I hope you don't honestly believe the line - "In fact it's that Congress provided for no penalty whatsoever for an overstay unless and until the overstayer leaves the US."

Read up INA 237(a)(1) C (i). The penalty for overstaying is a little thing called "deportation". And then if the person attempts to re-enter after being deported that the INA 212(a)(9)(B) comes into play.

Edited February 27, 2010 by Sc0tt28

[Brother Hesekiel 2,236]

There is no penalty for overstaying. If there was one, violators would have to see a judge, get convicted, and serve their time in prison before being deported. That's what happens to criminals. You commit a crime, get convicted, then, after you served your time, get deported (if you have no current immigration status).

Since there's no penalty for overstaying, however, violators are not charged with a crime; they are merely detained and send home.

[JimVaPhuong 4,863]

There is no penalty for overstaying. If there was one, violators would have to see a judge, get convicted, and serve their time in prison before being deported. That's what happens to criminals. You commit a crime, get convicted, then, after you served your time, get deported (if you have no current immigration status).

Since there's no penalty for overstaying, however, violators are not charged with a crime; they are merely detained and send home.

You're right. Overstaying is not a crime. It is an abuse of a privilege. As such, the penalty is that the privilege may not be extended to you again. The law even specifies how long the privilege will be withheld, depending on the length of the overstay. This is comparable to having your driver's license revoked because you got too many speeding tickets. Speeding isn't a crime (most states classify it as an 'infraction', unless you're going REALLY fast, in which case they might add reckless endangerment, which IS a crime), but you can still be penalized by having your driving privileges revoked.

So, there actually IS a penalty, but it's not a criminal penalty.

[Sc0tt28 26]

You're right. Overstaying is not a crime. It is an abuse of a privilege. As such, the penalty is that the privilege may not be extended to you again. The law even specifies how long the privilege will be withheld, depending on the length of the overstay. This is comparable to having your driver's license revoked because you got too many speeding tickets. Speeding isn't a crime (most states classify it as an 'infraction', unless you're going REALLY fast, in which case they might add reckless endangerment, which IS a crime), but you can still be penalized by having your driving privileges revoked.

So, there actually IS a penalty, but it's not a criminal penalty.

Thank you! Somebody knows what I was talking about and used a smidge of common sense. Deportation is the penalty because obviously the desire of the overstayer is to remain in the US indefinitely.

[Cereza 1]

Hi All,

So to answer the question plainly, what forms must be filled out when a USC married someone who overstays a Tourist visa?

I-485 adjust status

I-94 to prove entry

Any other forms?

[momof1 205]

Read up INA 237(a)(1) C (i). The penalty for overstaying is a little thing called "deportation". And then if the person attempts to re-enter after being deported that the INA 212(a)(9)(B) comes into play.

Actually 9b is either the 3 or 10 year immediately waiveable bar for unlawful presence which is triggered once they leave the US(either voluntarily or by deportation). If one is deported and then either re-enters or attempts to re-enter, that is 9c. 9c is a permanant bar that is only waiveable after 10 years outside of the US.

[Niels Bohr 72]

Sometimes I just think it's more fraud to have someone overstayed their visa, getting someone to marry them, and voila - permanent green card. It drives me mad.

Getting a tourist visa is quicker than obtaining a spousal visa. My point being, it doesn't seem very fair. My wife is already here, and I had to wait half a year. Wheareas, someone can make an appointment at the overseas US embassy, get an interview for a tourist visa, voila - next day they have the visa. Then, they travel to the states, get married, and file for AOS. Isn't that a quicker process?

I am very mad and disappointing when I did a foolish thing as to have done the spousal visa process instead of the tourist visa followed by AOS after marriage.

Edited March 2, 2010 by Niels Bohr

[Boiler 45,520]

Not everybody needs a visa, just get on a plane and fill the form in. You do need to do ESTA now on line.

I doubt she would have got a Visitor Visa, for that very reason.

[JimVaPhuong 4,863]

Sometimes I just think it's more fraud to have someone overstayed their visa, getting someone to marry them, and voila - permanent green card. It drives me mad.

Getting a tourist visa is quicker than obtaining a spousal visa. My point being, it doesn't seem very fair. My wife is already here, and I had to wait half a year. Wheareas, someone can make an appointment at the overseas US embassy, get an interview for a tourist visa, voila - next day they have the visa. Then, they travel to the states, get married, and file for AOS. Isn't that a quicker process?

I am very mad and disappointing when I did a foolish thing as to have done the spousal visa process instead of the tourist visa followed by AOS after marriage.

If your wife could have gotten a tourist visa to the US in Cambodia, then she is a fortunate person indeed.

No doubt about it, coming to the US on a tourist visa, marrying a US citizen, and then adjusting status is the fastest way to get to the US and stay here permanently. There's only one catch - the immigrant has to convince USCIS that filing for AOS was not planned when they entered with their tourist visa. If USCIS doesn't buy the explanation and denies the AOS, then the intending immigrant is deported for visa fraud with a possible lifetime ban from the US. By comparison, a spousal visa is relatively risk free.

[Boiler 45,520]

I see that comment posted quite a bit, not sure where it comes from, any link to actual cases?