US citizen married immigrant on B2 out of status

[Brother Hesekiel 2,236]

Blob18,

this would be a great time to listen and to learn.

Harpa Timsah is 100% correct and if you one day want to be able to give meaningful advise on this subject to other VJ members, I suggest you soak everything she said in thoroughly. Her contributions are spot on and I haven't seen her make a mistake yet, not even once.

The bar is triggered the moment a foreigner with overstay leaves the US. No leaving, no bar triggered.

For that very reason it has no merit to apply for an I-131 (Advance Parole). The O.P.'s wife most likely would get it approved and mailed to her, but once she leaves the US, she would trigger the bar. When she returns, the CBP officer would deny her admission to the US based on the bar, and despite the A.P. on hand.

DHS is the mother, USCIS, CBP, and ICE the children, and they don't always agree on everything. So while USCIS says: here's your AP, bon voyage, CBP will say: not my problem, I didn't give you nothin' . . . now turn around and go home.

[uverseman 5]

She already triggered the 3 year ban due to 180 days overstaying and she is coming up close on 1 year overstay which triggers a 10 year ban. More than likely the petition will be denied and you will need to file a waiver once that happens.

My ex wife was 7 years overstay on a b2 and the AOS was completed no problem, got her 10 year GC after married 2 years no problem. This was done 5 years ago, maybe more strick with rules nowadays. She waited for the first GC before she traveled though, again with no problem.

Edited April 22, 2011 by uverseman

[Bobby+Umit 161]

Wish people would stop using the phase "forgiven" when talking about adverse(negative) factors, like overstay , or working without authorization (Matter of Khan , 17 I. & N. Dec. 508 (BIA, 1980).

It's not "forgiven", it is still an "adverse(negative) factor", however, it, alone, does not rise to the level to affect the AOS.

There are case precedents regarding these that allow AOS to still occur, even though they are "adverse(negative)". (even coming here with prior intent, is not a strong enough "adverse" factor to derail the AOS - Matter of Cavazos, 17 I & N Dec. 215 (BIA 1980) )

Not withstanding, if you have lots of "adverse factors" working against you, in total, then your results will not be as good - since the process is as follows:

Adjustment of status is discretionary. Even if you are eligible for adjustment and do not fall within one of the statutory bars, the USCIS may still deny an application for adjustment of status. Generally, adjustment of status will be granted if you are eligible under the statute and there are no "negative factors." A negative factor may include your intent to remain in the U.S. when you entered as a nonimmigrant, even if you did not commit fraud or willful misrepresentation. When such negative factors exist, the USCIS will weigh the negative and positive factors to determine whether to approve your adjustment application. Close family relatives, immediate relatives, may be a strong factor favoring adjustment.

(forgot where I found this nugget of info - but it gels with all the USCIS stuff I have read).

(for particular cases - Precedent Decisions Pertaining to Adjustment of Status )

I would not recommend anyone thinking they can just breeze through AOS with adverse factors - you will still have to prove your case, and pay for any lawyers, etc, you will need if it goes badly.

[Boiler 45,525]

Hmmm I hope you are right for their sake but why do we go through the process then of filling for a K-1 visa? I mean I had a tourist visa, I didn't overstay but we could have gotten married when I was in the States and I would be forgiven?

I don't think it's that simple as some people claimed. I guess since you have nothing to lose, you can go for it and do anything you can to make your wife legally stay in the US

There are no published figures but I would be surprised if adjusting from a Tourist Visa was not the most popular route.

Forgiven may not be the correct word but for an overstay situation not sure if it really matters. Nice and neat.

If you had adjusted whilst in status there would have been nothing to forgive. All other things being equal.

[Thisislife 31]

I am a US citizen and my wife came to the US in dec 2009 on a b2 visa. Her I-94 expired June 2010. I married my wife in Aug 2010 two months after her visa expired and overstayed. It's been almost a year or so since she overstayed and now I have all the forms ready to file for an AOS. Can i send forms I-130 with AOS forms? I also would like the option to send I-131 and I-751 but being hesitent because I don't know if we should for apply for reentry permit or advance parole for the travel document. I read the intruction for the travel document and made me confused, almost as if my wife could be banned from reentry to the US for x amount of years becase she overstayed.do we have to apply for an I-821 TPS before I file for I-130 and AOS?? Please help

hhhmmmm I am also sailing in the same boat. I came on 6/29/10 and had immigration till 12/28. Applied for extension and was granted for 3 months till 3/15. Married my US GF in Jan. Filed my I 130 in Feb. I did not file my I485 as we did not have enough money for it. Also our attorney adviced to file it later. I will my I485 AND I765 next week. He also informed us that i can apply for my Advance parole for travel and come back. It should not be a problem. May be my case is a little different because i got married within my extension time period or may be not

[Myopia 93]

hhhmmmm I am also sailing in the same boat. I came on 6/29/10 and had immigration till 12/28. Applied for extension and was granted for 3 months till 3/15. Married my US GF in Jan. Filed my I 130 in Feb. I did not file my I485 as we did not have enough money for it. Also our attorney adviced to file it later. I will my I485 AND I765 next week. He also informed us that i can apply for my Advance parole for travel and come back. It should not be a problem. May be my case is a little different because i got married within my extension time period or may be not

But you have now overstayed your extension and if you leave you will trigger a ban. You are now out of status as can be denied entry if you choose to use the AP.

[A + M 29]

This is incorrect. Overstay is irrelevant/forgiven for immediate relatives of US Citizens who entered with a valid visa. She does not have a ban yet because she is still in the country and did not leave. If she leaves any time before she has her GC, she will trigger that ban. Once she gets the GC, she can travel freely. I wouldn't bother filling out the I-131 because she cannot use it because of the overstay (if she does she would trigger that ban, even with an Advance Parole Document in hand). Follow the guide linked by Candian_wife and send the forms altogether to the Chicago Lockbox designated. Good luck.

Also, check out this forum:

http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

Correct!

You can get techical all you want. The U.S. government could care less about the technicality of it all. Fact is she has been here out of status/illegally for almost a year which will result in a 10 year ban. That ban will occur when she files for the greencard and/or AP, as it will become apprent to them, or she leaves.

Let's not play semantics here mkay. She will receive the ban no matter what she files for, as it becomes apparent she overstayed illegally, regardless of what she files for.

Besides, we don't know the whole story about the B-2 visa and then getting married. USCIS could cite them with immigration fraud as well. This case isn't as simple as "File for a greencard and it's all ok". It's all clearly spelled out on the U.S. State Department Website on what can/will occur due to visa overstay/out of status.

Incorrect!

AND please, don't give away wrong informations!

[Dakine10 5,452]

Wish people would stop using the phase "forgiven" when talking about adverse(negative) factors, like overstay , or working without authorization (Matter of Khan , 17 I. & N. Dec. 508 (BIA, 1980).

It's not "forgiven", it is still an "adverse(negative) factor", however, it, alone, does not rise to the level to affect the AOS.

There are case precedents regarding these that allow AOS to still occur, even though they are "adverse(negative)". (even coming here with prior intent, is not a strong enough "adverse" factor to derail the AOS - Matter of Cavazos, 17 I & N Dec. 215 (BIA 1980) )

Not withstanding, if you have lots of "adverse factors" working against you, in total, then your results will not be as good - since the process is as follows:

(forgot where I found this nugget of info - but it gels with all the USCIS stuff I have read).

(for particular cases - Precedent Decisions Pertaining to Adjustment of Status )

I would not recommend anyone thinking they can just breeze through AOS with adverse factors - you will still have to prove your case, and pay for any lawyers, etc, you will need if it goes badly.

Good information. I also don't like the term "forgiven". There have been a couple of posts on VJ from people who have given up their GC's and found out when trying to enter as visitors that the overstay is not forgiven.

I was comfortable saying the overstay was "irrelevant" but maybe even that's not the best terminology. I do think the key point though is if the overstay is the ONLY adverse factor in this case, it should not have a negative impact on the AOS.

[Little_My 464]

Duly noted, I will scratch "forgiven" from my immigration vocabulary - It's probably safe to say that USCIS is really not in the business of forgiving (or forgetting..) anything, though some visa violations may not be made into an issue in the AOS stage.

Edited April 23, 2011 by Mrs.Finland-USA

[LlamaInvasion 76]

Erm, this has confused me a little.

My visa expires in May. I have already submitted my AOS application and had my biometrics. If I can't get my interview before, I was planning on leaving for my home country between July 20th-September 20th-ish, with an AP. Does this mean I cannot do this, since at that point I will be in overstay, so they won't let me back in?

[Little_My 464]

No, you won't have overstayed your visa since you submitted your AOS application, and it was accepted by USCIS before your current visa status expired. The time between your current F1 visa expiring to getting your GC is kind of limbo in between statuses, but you are not an F1 overstay, you are here legally while your AOS is pending.

[Boiler 45,525]

What Visa do you have?

If it is the F1, that is non immigrant.

[LlamaInvasion 76]

I'm under an F-1 right now. What does that mean? Can I leave and come back, since the AOS application was in the system before it expired?

[Little_My 464]

Yes, you can. As long as you have the AP document and a valid passport (and maybe it's a good idea to bring the NOAs with you as well, just in case) you can leave, go to Norway, and come back with the AP. I don't know if there is any limits on how long you can be gone with a pending AOS - I haven't seen anyone mention that there would be. The only challenge for you is the possibility of having the interview scheduled for a date when you are supposed to still be in Norway.

You haven't overstayed your visa or accumulated any illegal presence in the US. You are fine to travel - as long as you have the AP.

Edited April 23, 2011 by Little_My

[DAVIS26 1]

I just wanted to thank everyone again for helping us with this journey. We just recieved our NOA letter today. It's being processed! we are hoping all goes well and it gets accepted!