New here, please pardon my ignorance and please please help!

[suigeneris 0]

Hi all:

Very stressed. New to immigration world and here.......I am going to cut right to the chase, any advice will be greatly appreciated!!!!!!

Background:

Gf came to US as an Au Pair on J-1 VISA with two year home residency requirement, finished her first year then extended her J-1 to another year in new family. Left family early. Don't know if her Visa is canceled or not (But her Visa will not be expiring until July 2011). I am a US Citizen.

What have we done:

1) Applied for the 2 year home residency requirement waiver. We don't want her to have to go back to her country, so not considering the K-1 option right now.

What we're trying/planning to do:

1) Get married (good move?).

2) Gathering documentations to file I-130 and I-485.

Questions:

1) What if her Visa is now canceled? Can we still file I-130 and I-485 (from the research that I've done, we can, just more complicated than if her Visa was not canceled, if anyone could please please confirm this and advise what the difference is, thank you!!)

2) Some documentations required for I-485 will take a long time to obtain, about 3 months. In this case, should I file for I-130 first? Also, we're still waiting for the 2 year home residency waiver.

Sorry for the long description, please help !!!! Waiting online, if more information is needed, please let me know! THANK YOU!!!

Edited January 20, 2011 by suigeneris

[JimVaPhuong 4,863]

A J-1 visa holder's authorized stay can't extend beyond the validity of their visa, I-94, or DS-2019. However, their authorized stay expires automatically if the requirements of their program are no longer being fulfilled. Technically, she had 30 days to leave the US when she left her program-related employment. If it's been more than 30 days then she's already out of status.

I wouldn't bother filing the I-130 now. There's no point in it. It doesn't provide any sort of authorized stay. Wait until you get the HRR waiver and then file everything. It won't matter if she's out of status when you submit the I-130 and I-485. The requirement that an AOS applicant must maintain their non-immigrant status doesn't apply to an immediate relative of a US citizen.

If the HRR waiver is denied then make sure she leaves the US before she's accumulated 180 days of overstay. She'll have to wait out the two year home residency period anyway, but if she's got at least 180 days of overstay then she'll be barred from returning for 3 years. If she's got a year or more of overstay then she'll be barred for 10 years.

[suigeneris 0]

A J-1 visa holder's authorized stay can't extend beyond the validity of their visa, I-94, or DS-2019. However, their authorized stay expires automatically if the requirements of their program are no longer being fulfilled. Technically, she had 30 days to leave the US when she left her program-related employment. If it's been more than 30 days then she's already out of status.

I wouldn't bother filing the I-130 now. There's no point in it. It doesn't provide any sort of authorized stay. Wait until you get the HRR waiver and then file everything. It won't matter if she's out of status when you submit the I-130 and I-485. The requirement that an AOS applicant must maintain their non-immigrant status doesn't apply to an immediate relative of a US citizen.

If the HRR waiver is denied then make sure she leaves the US before she's accumulated 180 days of overstay. She'll have to wait out the two year home residency period anyway, but if she's got at least 180 days of overstay then she'll be barred from returning for 3 years. If she's got a year or more of overstay then she'll be barred for 10 years.

Thank you so so so much for the reply!!!!!!! Some really helpful information, such as, not to overstay for more than 180 days.......

Additional Questions:

1) is there anyway to check the status of her VISA. As mentioned above, her VISA is not expired, we're just not sure if her program canceled it, not sure if her program has the authority to cancel her VISA, probably not, I think her program has to contact the corresponding department in order to cancel her VISA.

2) it has not been more than 30 days, but the HRR waiver will take about 2-3 months. If we have everything ready to file for 130 and 485, do we file them now while the HRR waiver is still being processed?

AGAIN, THANK YOU SO SO SO SO MUCH!!!!!!

Edited January 20, 2011 by suigeneris

[JimVaPhuong 4,863]

Thank you so so so much for the reply!!!!!!! Some really helpful information, such as, not to overstay for more than 180 days.......

Additional Questions:

1) is there anyway to check the status of her VISA. As mentioned above, her VISA is not expired, we're just not sure if her program canceled it, not sure if her program has the authority to cancel her VISA, probably not, I think her program has to contact the corresponding department in order to cancel her VISA.

2) it has not been more than 30 days, but the HRR waiver will take about 2-3 months. If we have everything ready to file for 130 and 485, do we file them now while the HRR waiver is still being processed?

AGAIN, THANK YOU SO SO SO SO MUCH!!!!!!

Understand that her period of authorized stay is not dictated by what's written on her visa. A visa is good for entry into the US - nothing more. Most B2 visitor's visas have a validity of 10 years, but NOBODY is ever granted 10 years of continuous stay in the US when entering with a B2 visa. 6 months is more typical, and 1 year is the statutory maximum. The period of authorized stay is primarily dictated by what's stamped on the I-94, and secondarily (for a J-1 visa holder) by what's written on the DS-2019. BUT (and this is a big 'BUT') that authorized stay can be terminated earlier than the date on either the I-94 or DS-2019 if the alien is no longer fulfilling the requirements of their visa.

Your fiancee stopped fulfilling the requirements of her visa when she left her employment. She has a 30 day grace period, beginning on that day, to leave the US. After that, she begins accumulating overstay time. If, at any point in her future dealings with the US government, they need to determine if she overstayed and by how much then they WILL determine when she left her employment. It isn't necessary for them to gather this information now. They can collect the information when it becomes a factor in determining if she's eligible for an immigrant or non-immigrant benefit. Fortunately, it's not a factor when adjusting status as an immediate relative of a US citizen. However, it IS a factor in applying for a visa at a US consulate abroad.

In other words, no - you can't check her status. The reason is because USCIS probably hasn't bothered to check her status. At this point, they don't care. They'll care if she applies for something where overstay would be relevant.

DO NOT FILE THE 1-30 AND I-485 UNTIL THE HRR WAIVER HAS BEEN APPROVED! She's not eligible to apply for adjustment of status as long as the HRR rule is hanging over her head. The petition would be denied.

[Krikit 1,164]

Moving from AOS Process to General Immigration Discussion.

[Brother Hesekiel 2,236]

As usual, Jim nailed it.

One more suggestion: when you file for AOS, also include an I-765 which is the work authorization. If filed concurrently with the AOS petition (and only then), it's FREE, and that alone is a reason to include it, whether you thing she'll need it or not

[suigeneris 0]

As usual, Jim nailed it.

One more suggestion: when you file for AOS, also include an I-765 which is the work authorization. If filed concurrently with the AOS petition (and only then), it's FREE, and that alone is a reason to include it, whether you thing she'll need it or not

Had no Internet for a couple of days .

Thank you so so so so so much for all the advice!! They're really helpful to!

I'm going to wait for the waiver.

Also, my wife is an au pair, I did some digging, I found out that the following doesn't really apply to her, and that maybe there's a mistake for the 2 year rule on her visa.

1) no funding provided from either government.

2) not a student, so no skills list

3) not medical student.

I requested an advisory opinion from the DOS, hope to get an answer soon.

SEE BELOW: WHAT DO YOU GUYS THINK??

"Likewise, the Department of State has also determined that au pairs have no particular skill set either and cannot be subject to the 2 year residency requirement."

http://www.hooyou.com/news/news060710j1.html

[JimVaPhuong 4,863]

Had no Internet for a couple of days .

Thank you so so so so so much for all the advice!! They're really helpful to!

I'm going to wait for the waiver.

Also, my wife is an au pair, I did some digging, I found out that the following doesn't really apply to her, and that maybe there's a mistake for the 2 year rule on her visa.

1) no funding provided from either government.

2) not a student, so no skills list

3) not medical student.

I requested an advisory opinion from the DOS, hope to get an answer soon.

SEE BELOW: WHAT DO YOU GUYS THINK??

"Likewise, the Department of State has also determined that au pairs have no particular skill set either and cannot be subject to the 2 year residency requirement."

http://www.hooyou.com/news/news060710j1.html

A lot of au pairs are placed by agencies that are funded in part by the government, and in part by the families who are using their services. In these cases, the au pair is subject to the two year HRR under the first statutory requirement - sponsored by either government or an agency that's partially funded by either government.

If she was placed by an agency then you need to check with the agency to see if they qualify as a section 212(e) international sponsor. If not then there's a pretty good chance the advisory opinion will go your way. It probably wouldn't hurt to go ahead and get the "No Objection" letter now. Might's well kill two birds, etc...