Married for almost a year but no AOS filed

[PurpleSky 19]

Hello...

I've become the "ask" person for Immigration since I'm going through the process now for my fiance. I was asked this question and I want to make sure the answer I gave was correct.

The wife (now) had been coming to the US from London back and forth for about a year or so. On her last visit they decided to just go to the Justice of the Peace and get married. They've been married now since April last year and they haven't filed AOS yet for financial reasons. The husband is saying that he thinks they need a lawyer to file now because it's been so long.

Would they need a lawyer or could they just file AOS and EAD without penalty?

[Harpa Timsah 13,258]

Did the wife enter on the Visa Waiver Program or on a real visa? Or another way to answer this question, what passport does the wife have?

Edited January 7, 2011 by Harpa Timsah

[YuAndDan 153]

If there has been travel since marriage, then last entry then AOS is clear immigrant intent, the best option with the least risk is to simply file an I-130 for a spouse visa.

If has been in the USA since marriage and not traveled, then AOS probably would be best option, if can show that there was no intent to immigrate before the marriage.

[Harpa Timsah 13,258]

Unless the wife entered on the Visa Waiver Program (traveling from London, is she a UK Citizen?) Then even if she just stayed here her petition could be automatically denied because of the overstay. It depends on the local office... what state do they live in? If she entered with a valid normal visa, the above is true.

[PurpleSky 19]

She came over on the VWP as a UK Citizen. It wasn't a planned thing for them to get married. As I stated she was going back and forth for over a year and on the last visit they decided to get married. Personally, I think it was because they aren't spring chickens (both in their 50's) so the travel back and forth was becoming too much. That's my own opinion though.

ETA: They live in CT.

Edited January 7, 2011 by PurpleSky

[Harpa Timsah 13,258]

CT is in the second circuit. That circuit has not started routinely denying VWP overstays as far as I know, but things are changing rapidly. People who use the VWP sign away their rights to appeal immigration decisions, and therefore some circuits have determined that a VWP overstay cannot adjust status. I guess your friends either try to adjust and risk denial and deportation which would require a waiver to overcome, or go home and file for CR-1, for that they would also need a waiver to overcome the overstay. So if AOS is denied, they would need two waivers to overcome her ban for overstay and her deportation order, if they went for CR-1, they would need only one waiver.

I *think* the 2nd circuit will be favorable to you, but I would maybe have a consultation with a good immigration lawyer to see what has been happening at your local office with VWP overstays. Be wary of someone who guarantees success, or hasn't done one in the past 6 months or so. A lawyer cannot change the laws, and many people file AOS on their own.

Edited January 7, 2011 by Harpa Timsah

[PurpleSky 19]

Thanks for the information. Is it still considered an overstay if they married before her visit expired?

[JimVaPhuong 4,863]

Thanks for the information. Is it still considered an overstay if they married before her visit expired?

Yes, of course. Marriage to a US citizen does not automatically grant any sort of immigration status. It only makes them eligible to apply for that status.

[PurpleSky 19]

Thanks Jim!! Y'all are such a wealth of information. I really appreciate you all!!