married to a US citizen but i overstayed my visa

[oka88 1]

i read a similar thread right below this. i entered the United States in 2001 from Nigeria with a visiting visa, i was 13 at the time. my sister who was a citizen filed an i-130 petition on my behalf on september 2001. since i was still a kid, my family didnt feel it was necessary for me to go back home, instead i was enrolled in school (done with grad school, trying to get into a med school) and my 1-94 expired. The i-130 my sister filed was approved (i recieved the i-797 notice in august 2009) but because i am in the states and i have overstayed, im not eligible to adjust my status, ill have to leave the country. i met my wife back in 2007 at a breast cancer walk, since then we've been dating up till june last year when we got engaged and got married this april. my question is, she wants to file for me. does it matter that i already have a case pending?

[katgrl 14]

Hello, your case is just like my husband's. He entered on F1 visa, his sister filed I-130 for him in 2001, approved in 2009 but ineligible to adjust status due to overstay. Weird reading that! We successfully adjusted in March this year. I had the same worry as you that his sister's petition would affect us. It had nothing to do with it. You did not receive an NTA (notice to appear) did you? Or other documentation about deporting correct? Please let me know if you have any questions!

[NigeriaorBust 4,087]

It is find to have 2 visas at the same time. Your marriage based one will probably be the faster of the 2 as it sounds like you have a 10 year ban for your overstay and siblings aren't able to provide the proof of hardship that a spouse can .

[Kathryn41 3,205]

Since you entered the country legally, you are allowed to apply to adjust your status through your marriage to a US citizen even though your status is expired. DO NOT LEAVE the US until you get your green card! If you do, you will incur an automatic 10 year ban - it will not kick in unless you leave the US, so as long as you remain in the US you will be fine. Once you file for the I-485 your status will again become legal pending a decision on the I-485. Do not bother to file for the I-131 Advance Parol/Travel Documents. USCIS will grant it, but you would still incur the 10 year ban if you left the country and that would negate the I-131 parole, so you can't use it even if you have it.

Since there is no visa number yet available for your sister's I-130 petition for you, your wife's I-130 and the I-485 will probably be approved before a visa became available through your sister. You would have to leave the US to take advantage of the visa from your sister's approved I-130 petition and then that would incur the 10 year ban so you would not be able to take advantage of that visa after all. You do not need to leave the US to take advantage of your wife's I-130 petition. That is an exception to the process. The spouse of a US citizen is allowed to adjust status from within the US even if they are out of status when they apply, as long as they entered legally.

Remember - DO NOT LEAVE the US - you do not have the ban until you leave and you don't need to incur the ban to take advantage of your wife's filing of the I-130 petition for you.

Good luck.

[oka88 1]

thanks for the reply! katgrl, no i havent recieved any of that. once again thanks for the reply guys

[pink_camaro 0]

Kathryn41 is right. Being petitioned by a US citizen spouse will get you a GC faster. The moment that you were married to a citizen, your overstay have been forgiven. That is what happened in my case. I imagine you must be losing your mind for worrying about your overstay. Be patient, stay positive and remember not take international trips. Good luck!

[JimVaPhuong 4,863]

Kathryn41 is right. Being petitioned by a US citizen spouse will get you a GC faster. The moment that you were married to a citizen, your overstay have been forgiven. That is what happened in my case. I imagine you must be losing your mind for worrying about your overstay. Be patient, stay positive and remember not take international trips. Good luck!

I hope nobody takes the bolded statement above literally. Marrying a US citizen doesn't change your immigration status in any way. It only makes you eligible to apply to have your status changed. If the application is denied then the overstay will still exist, even though you're the spouse of a US citizen. If it's approved then the overstay isn't really "forgiven". It just becomes irrelevant.

[pink_camaro 0]

I hope nobody takes the bolded statement above literally. Marrying a US citizen doesn't change your immigration status in any way. It only makes you eligible to apply to have your status changed. If the application is denied then the overstay will still exist, even though you're the spouse of a US citizen. If it's approved then the overstay isn't really "forgiven". It just becomes irrelevant.

First of all, I did not say that marrying a us citizen will change your status. Second, yes the overstay is 'forgiven', that is the word used by my lawyer. I did not say that this always happen in every case, I did mention though that my overstay was forgiven IN MY CASE. I was not even asked about it during our interview. Of course they will always know about the overstay. If married to a us citizen, the overstay will be irrelevant BECAUSE it is forgiven.

[sun flower 3]

We had an interview this morning in Immigration to check if all my documentation is in order to go for a short trip to Bolivia (I have received already my GC). My husband asked him she won't have any problem coming back, because she overstayed? and the IO said exactly: "it has been forgiven".

[Little_My 464]

I think the reason why many members here cringe at the word "forgiven" is because the overstay does not really disappear after a person adjusts his/her status due to marriage to a USC. It does not prevent adjusting status or becoming a permanent resident, so in that sense, yes - USCIS, at that moment, forgives the intending immigrant for overstaying their previous non-immigrant visa. It's not erased from that individual's record though, and I remember vaguely reading of a case where an LPR lost his GC due to being abroad for too long without applying for a re-entry permit, and after that was subject to a 10 year ban because before becoming an LPR, he had overstayed his previous visa status by over a year, and that overstay and the ban related to it came back into force once his permanent resident status was revoked. Maybe an urban legend - but maybe not.

[ceadsearc 516]

Agreed with what Little_My said. Also, the previous poster said that overstay was forgiven at the moment of marriage - not true at ALL. Overstay is "forgiven"/irrelevant/overlooked/whatever at the moment of green card APPROVAL.

[Brother Hesekiel 2,236]

Many people use the word forgiven in this context because it's easier to grasp for foreigners who are new to the whole immigration stuff and perhaps not as versed in the English language. The correct terminology in regard to overstay is "not being made an issue of" as the unlawful presence (replaces "overstay" as the correct term) alone is not being used to deny a petition for adjustment of status.

Neither God nor Uncle Sam forgives anything. We are all responsible for our own actions on more than one level.