GOING HOMe!?

[tsokonut 0]

hi again,

I read a lot of stuff here which gave me hopes that me and my wife can survive this ongoing issue.

AGAIN...

I am USC married to an OUT of STATUS pinay for 2 years and 3 months to date. Currently, I am unemployed, my wife does part time stuff so we have something on the table. Both family sides are helping and assisting financially till i get back on my feet and work again or if ever she's able to work legally. (that's our status right now)

Okay, so september 14, 2010 our lawyer submitted our paper works to USCIS; received notice of receipt 09/27/10; 10/08/10 received appointment for Biometrics for 10/29/10 so glad everything is coming in order....

(We had a Co-Sponsor)

Anyway, my concern now is I asked some of my friends and told them what's going on and they were saying my wife needs to go home so I could petition her!? reading some of the posts here : she's gonna be BANNED if ever she lives the country not fixing her status.

what are the possibilities regarding this situation.

THANKS SO MUCH

[JimVaPhuong 4,863]

hi again,

I read a lot of stuff here which gave me hopes that me and my wife can survive this ongoing issue.

AGAIN...

I am USC married to an OUT of STATUS pinay for 2 years and 3 months to date. Currently, I am unemployed, my wife does part time stuff so we have something on the table. Both family sides are helping and assisting financially till i get back on my feet and work again or if ever she's able to work legally. (that's our status right now)

Okay, so september 14, 2010 our lawyer submitted our paper works to USCIS; received notice of receipt 09/27/10; 10/08/10 received appointment for Biometrics for 10/29/10 so glad everything is coming in order....

(We had a Co-Sponsor)

Anyway, my concern now is I asked some of my friends and told them what's going on and they were saying my wife needs to go home so I could petition her!? reading some of the posts here : she's gonna be BANNED if ever she lives the country not fixing her status.

what are the possibilities regarding this situation.

THANKS SO MUCH

With over two years of overstay she'll get a 10 year ban if she leaves.

What type of visa did she enter the US with?

[tsokonut 0]

With over two years of overstay she'll get a 10 year ban if she leaves.

What type of visa did she enter the US with?

that's what i've heard... if she leaves = BANNED

what if she's been asked to leave???

we've been married for 2 years and 3 months she's been here since 03/2007 and we got married 06/2008

B1 B2 visitor's visa

[Penguin_ie 5,993]

Definitely don;t have her leave the country- not even for a weekend in Canada or some such!Npt until she has her greencard or is being told to leave.

Normally, an overstay is forgiven if married to a US citizen. There are exceptions though, such as if there is a criminal history, or of course if they suspect fraud. Has she been asked to leave (ie is she is deportation proceedings)? if so, they will probably suspect your marriage to be fraud, and it'll be an uphill battle for you.

[JimVaPhuong 4,863]

With all due respect to Penguin_ie, and other very knowledgeable members of this forum, I do wish people would stop saying that an overstay is "forgiven". This is not an accurate description of what happens. An accurate description is that the overstay is not relevant in adjudicating the AOS petition of an immediate relative of a US citizen. The requirement that an alien maintain their non-immigrant status in order to be eligible to adjust status does not apply to an immediate relative of a US citizen. USCIS does not "forgive" the overstay. They simply aren't allowed to consider it when adjudicating the AOS petition.

that's what i've heard... if she leaves = BANNED

what if she's been asked to leave???

we've been married for 2 years and 3 months she's been here since 03/2007 and we got married 06/2008

B1 B2 visitor's visa

What exactly do you mean by "asked to leave"? Was she in removal proceedings? Who asked her to leave? Was she ordered deported? Was she given a voluntary departure? Any of these are critical facts which should have been mentioned in your opening post. If she was ordered deported or given a voluntary departure and then failed to leave the US then she's a deportation absconder. She cannot adjust status unless you can successfully convince the US government to reopen her deportation case. If this can be done then you have a reasonable chance of getting the AOS adjudicated. In all likelihood, this would happen in an immigration court. If she is a deportation absconder, in addition to having overstayed her visa, and she leaves the US, then she'll be banned for the deportation and banned for the overstay. An I-601 waiver will be needed to overcome the overstay, and an I-212 waiver will be needed to overcome the deportation.

[tsokonut 0]

With all due respect to Penguin_ie, and other very knowledgeable members of this forum, I do wish people would stop saying that an overstay is "forgiven". This is not an accurate description of what happens. An accurate description is that the overstay is not relevant in adjudicating the AOS petition of an immediate relative of a US citizen. The requirement that an alien maintain their non-immigrant status in order to be eligible to adjust status does not apply to an immediate relative of a US citizen. USCIS does not "forgive" the overstay. They simply aren't allowed to consider it when adjudicating the AOS petition.

What exactly do you mean by "asked to leave"? Was she in removal proceedings? Who asked her to leave? Was she ordered deported? Was she given a voluntary departure? Any of these are critical facts which should have been mentioned in your opening post. If she was ordered deported or given a voluntary departure and then failed to leave the US then she's a deportation absconder. She cannot adjust status unless you can successfully convince the US government to reopen her deportation case. If this can be done then you have a reasonable chance of getting the AOS adjudicated. In all likelihood, this would happen in an immigration court. If she is a deportation absconder, in addition to having overstayed her visa, and she leaves the US, then she'll be banned for the deportation and banned for the overstay. An I-601 waiver will be needed to overcome the overstay, and an I-212 waiver will be needed to overcome the deportation.

I haven't received any of these notices its just confusing of what some of my friends were saying that NOW in order to petition your spouse who overstayed they have to go back home and do the petition from there. That they inquire with a very good lawyer and thats what they were advising them to do "GO HOME AND THEN THE SPOUSE CAN BE PETITIONED" . Then of course i read a post here saying that the spouse needed to go home but then i think thats a different issue because it was an illegal entry or no documentation.

THANKS FOR THE ADVICE AND CLARIFICATIONS helps a lot

[JimVaPhuong 4,863]

I haven't received any of these notices its just confusing of what some of my friends were saying that NOW in order to petition your spouse who overstayed they have to go back home and do the petition from there. That they inquire with a very good lawyer and thats what they were advising them to do "GO HOME AND THEN THE SPOUSE CAN BE PETITIONED" . Then of course i read a post here saying that the spouse needed to go home but then i think thats a different issue because it was an illegal entry or no documentation.

THANKS FOR THE ADVICE AND CLARIFICATIONS helps a lot

Ok, illegal entry would be a completely different matter. Someone who entered illegally has practically no options for adjusting status while they're in the US. It's not like a Pinay can just walk across the Pacific ocean and into the US, is it?

Listen to your lawyer. Don't listen to your friends. Me and my wife have had lots of well meaning friends try to give us advice along the way, both here in the US and in Vietnam, and they were almost always wrong.