ITIN for Out of Status Wife

[PundaSmith 5]

Hello,

Good Afternoon.

My cousin has a dilemma. His wife entered US legally as a graduate student, but dropped out of the program due to funding issues. As a result, she has been out of status since 2008. Her 1-94 has D/S (duration of stay) on it, instead of an actual expiry date. It is not clear if USCIS has been notified by the university that she is no longer a student.

Currently, my cousin is being sponsored for the green card, but for obvious reasons, cannot include her on the application at the moment, and would have to wait until he gets the green card and becomes a citizen in about 5 years.

The question is that he wants to file for ITIN (W-7) for her. Part of the ITIN application asked for details about her current visa in the US and that students with D/S on their 1-94s can indicate that instead of the actual expiry date.

Is it advisable to apply for it at this time? Would her application for an ITIN tip the immigration authorities that she is still in the country?

Thanks very much for your advice...

rgdsm PS

[damulag 26]

Is your cousin on a work visa and his employer is sponsering him or is this a family based petiton for his green card?

[PundaSmith 5]

Thanks very much -- cousin is being sponsored by a work visa (labor cert). Cheers, PS

Is your cousin on a work visa and his employer is sponsering him or is this a family based petiton for his green card?

[justashooter 430]

this one is a mess, as are all circumstances in which people break the rules and try to "fix it" later on.

his green card application is going to ask his marital status, including details thereof, such as wife's name and address, and country of citizenship/status. if he lies about any of this, such as by saying he is not married, it is material misrepresentation. if this is ever discovered (and it eventually will be), even after he is granted citizenship (presumably), he can and will be stripped of US citizenship, deported, and banned from USA for life.

getting a green card is not going to improve his wife's illegal status much, anyway. GC holders have several years wait for spousal follow to join, conversion cannot take place inside USA, and overstays are not forgiven. the spouse has to interview in home country, and leaving USA to do so will trigger a 10 year ban on basis of this 3 year overstay, which will be 8 years by then.

lying about where she is now and trying to adjust her status 5 years later (assuming he gets citizenship) will also get them caught, as any adjustment involving marriage to a citizen, in which overstays are usually forgiven, will involve presentation of her original entry papers and the marraige certificate, which is presumably on file here somewhere in USA.

if they file ITN now it will cross reference in his GC process. they will just get caught sooner.

his wife needs to go home now. they have already made a mess of this by having her here illegally for 3 years. trying to figure out how to lie and cheat from here forward just gets more difficult by the day.