Sticky situation... thoughts please.

[Anh map 2,098]

* Thread moved from Spouse Visa forum to Adjustment of Status (Work, Student, Tourist) forum as alien currently resides in the US *

[Bobby+Umit 161]

What I would do.

Get married asap.

File for AOS based on marriage to an USC.

Do not leave the country till the greencard is in hand - even with the AP. ( the situation with the student visa can open him up to an overstay ban, so don't risk it.)

After he has the gc - he is free to come and go as he pleases, within the rules of the LPR status.

[LotofPatience 65]

What I would do.

Get married asap.

File for AOS based on marriage to an USC.

Do not leave the country till the greencard is in hand - even with the AP. ( the situation with the student visa can open him up to an overstay ban, so don't risk it.)

After he has the gc - he is free to come and go as he pleases, within the rules of the LPR status.

Bobby+Umit, Can he get 'waiver' for student visa overstay in this situation?

Loto

[inloveVEN 46]

That marriage had been sour for a long time prior due to his extramarrital affairs, I was terribly unhappy. The divorce has been finalized but we are going to be marrying almost right on top of the 30 day waiting period my state has in place before one can remarry.

I am not sure, but could it be considered as a Bigamy? becuase you are not free to get marry, or maybe someone can say that your new marriage is not valid and start a big problem.

Well, in any case you should start the AOS process ASAP, if you can priovide convincent proof of a marriage based in a good faith go ahead. i think that you need to wait for the 30 days, and after that get marry. and start the whole process and ask for an AP at the same time, he can flight and return with no problem.

only the time will tell you the true , but the most important think is that your are in love and you want to help him.

[ValerieA 350]

What I would do.

Get married asap.

File for AOS based on marriage to an USC.

Do not leave the country till the greencard is in hand - even with the AP. ( the situation with the student visa can open him up to an overstay ban, so don't risk it.)

After he has the gc - he is free to come and go as he pleases, within the rules of the LPR status.

Big for this one.

Bobby+Umit, Can he get 'waiver' for student visa overstay in this situation?

Loto

No need for a waiver if doing AOS; overstay is forgiven for spouse of a USC.

[LotofPatience 65]

Big for this one.

No need for a waiver if doing AOS; overstay is forgiven for spouse of a USC.

ValerieA, Thanks for your reply! I think experience talks here

Loto

[NigeriaorBust 4,087]

He is a Nigerian , he is in violation of his prior visa. 1 real issue and one perceived issue ( him being Nigerian makes him seem more apt to abuse the system ) You getting married quickly after the divorce is another red flag. Being white means you are from a different "culture" and another red flag. Being close to the same age is better, being previously married is a hit for "going against cultural norms. Meeting online with a Nigerian is a negative. ( immigration sees a lot of Nigerians cruising the net for green card wives ) You have been cohabiting so you have some documentation of the relationship ( a plus) You need to find out for sure if he is in removal proceedings because that would be a huge red flag and would tip the scales against approval and place you on a very slow path to ever being together again. Knowing the negatives can help you realize you have to take some care in preparing your AOS package. Overstays are normally forgiven if there are not too many things that make it looks like he just went looking for someone to marry and get a green card from. If you present a well prepared application your chances of it working will go up. I would suggest you read some of the sub Saharan posts about relationships. You will find good things ( the Happy Endings thread) and some real horror stories. Reading these will help you understand why those that have gone before have such caused immigration to look so harshly on West Africans.

[Lola21 0]

I am not sure, but could it be considered as a Bigamy? becuase you are not free to get marry, or maybe someone can say that your new marriage is not valid and start a big problem.

Well, in any case you should start the AOS process ASAP, if you can priovide convincent proof of a marriage based in a good faith go ahead. i think that you need to wait for the 30 days, and after that get marry. and start the whole process and ask for an AP at the same time, he can flight and return with no problem.

only the time will tell you the true , but the most important think is that your are in love and you want to help him.

No, not bigamy, I am eligible to remarry after 30 days of the divorce being granted, we will not be getting a marriage license until after the 30th day passes. Then we will probably be married after 72 hours passes after issuance of the certificate. Most likely by the end of Next week.

We will be conslting with an attorney this week to map out some sort of action and be more prepared for some of the challenges that may lie ahead. This is MUCH too important for us to go it alone without some guidance, I think we will have to make a way to pay for it, and like one of the other posters mention if it all works out well enough then it was DEFINITELY money well spent.

Thank you all again for the plethora of information! I feel 10x wiser about the whole situation and will continue to read posts and respond!

[ValerieA 350]

ValerieA, Thanks for your reply! I think experience talks here

Loto

I have thought a bit more about this topic, and there is one possible further issue - if he came in on a J1, does it have the 2-year rule? ie: he has to reside in his country for 2 years after getting his degree. That could be a problem.

[Darnell 8,479]

make sure you understand the stuff in this guide - http://www.visajourney.com/content/i130guide2

Good Luck !

[inloveVEN 46]

No, not bigamy, I am eligible to remarry after 30 days of the divorce being granted, we will not be getting a marriage license until after the 30th day passes. Then we will probably be married after 72 hours passes after issuance of the certificate. Most likely by the end of Next week.

We will be conslting with an attorney this week to map out some sort of action and be more prepared for some of the challenges that may lie ahead. This is MUCH too important for us to go it alone without some guidance, I think we will have to make a way to pay for it, and like one of the other posters mention if it all works out well enough then it was DEFINITELY money well spent.

Thank you all again for the plethora of information! I feel 10x wiser about the whole situation and will continue to read posts and respond!

OH, sorry Lola i misunderstood the whole situation

Go ahead, with your wedding, and start the AOS process ASAP. He will be forgiven, but he cannot leave the country till the arrival of his approved GC .

I think that this is a good idea to hire a good-well-referenced inmigration attorney and do exactly what are you doing, i mean, searching, investigating asking. Because in all moment you need to know what your lawery will do.because according to other Vj;s members, not all the attorneys are good enough so if you are well prepare you can discuss in a good way the steps that will your attorney take.

Best wishes for you both.

Edited September 3, 2010 by inloveVEN

[Bobby+Umit 161]

I have thought a bit more about this topic, and there is one possible further issue - if he came in on a J1, does it have the 2-year rule? ie: he has to reside in his country for 2 years after getting his degree. That could be a problem.

This is true - however - based on the OP's info - that isn't in play.

Since the person came on a student visa, their I-94 is probably stamped with D/S - so only an IJ can determine if they violated the visa and acquired overstay, that to - isn't mentioned by the OP. (if they are in deport status, seeing an IJ) - I still would not attempt travel on AP if I went past the authorized stay, even if it said D/S - CBP can act on info on hand when you come to the POE.

If they are not in deport status, and the 2yr requirement isn't applicable, then the perceived "overstay" of the student visa, in itself, is not grounds for denial for the AOS.

Remember - overstay and working without permission are not "forgiven" by USCIS, they just don't rise to the level of denial needed. (based on previous case law that governs USCIS). (working without permission is mentioned without regard to the OP) - so they don't matter in the scheme of things.

Yes, they are adverse factors, but you need a lot of adverse factors to get a denial, or just one, misrepresentation.

In all my research, this one factor was enough for 10 yr/lifetime bans.

[Deputy Purple 1,294]

If you marry him before checking if he is marked for deportation and you later find out he is then you just made things so much more complicated as USCIS will assume that your marriage is fraudulent and you'll have to overcome that regardless of if he gets deported or not.

Before you get married find out his status...

[Albertvaz 0]

extreme caution. that is all i can say

[SuperDuper! 230]

Ummm yeah.. thanks, I think? maybe a hint of sarcasm in your note, or not?

Welcome to VJ!

May your journey be successful.