New to this situation! What happens in my case?

[Newbie11 0]

Hi All,

I am new to VisaJourney and recently started reading all the topics in this forum and thought someone out there would be able to help me as well. I am a british citizen, I came to the US to study on a F1 visa. I met my husband here and we got married 2 years ago but I maintained my student visa till I got done last year and then applied for change of status to F2A (as my husband is a green card holder). I am residing in the US. I applied in September 2010, and when I checked the Visa Bulletin the PD was June 2010! It moved all the way till August and just when my turn was about to come it moved all the way back to 2008. Oh well... just my luck!

Anyway, I was wondering what happens next? So I got a letter from USCIS confirming that they received my documents, but then the PD moved back. Incase in the next few months it does go to 2010, what should I expect? Do I get my green card immediately. How long is the wait till I get my green card (being a british citizen)?. I read a few topics on this forum that people are getting interview calls even though their PD is still not current. Should I be expecting a call soon too as my PD is Sept 2010?

All help would be appreciated Thanks!

[RICARDO4EVA2 194]

Hi All,

I am new to VisaJourney and recently started reading all the topics in this forum and thought someone out there would be able to help me as well. I am a british citizen, I came to the US to study on a F1 visa. I met my husband here and we got married 2 years ago but I maintained my student visa till I got done last year and then applied for change of status to F2A (as my husband is a green card holder). I am residing in the US. I applied in September 2010, and when I checked the Visa Bulletin the PD was June 2010! It moved all the way till August and just when my turn was about to come it moved all the way back to 2008. Oh well... just my luck!

Anyway, I was wondering what happens next? So I got a letter from USCIS confirming that they received my documents, but then the PD moved back. Incase in the next few months it does go to 2010, what should I expect? Do I get my green card immediately. How long is the wait till I get my green card (being a british citizen)?. I read a few topics on this forum that people are getting interview calls even though their PD is still not current. Should I be expecting a call soon too as my PD is Sept 2010?

All help would be appreciated Thanks!

well.. Welcome.....

two things you should be concerned about....

1. WHAT is your current immigration status................?

2. WHEN is your husband able to get US Citizenship if he wants it...?

[Newbie11 0]

Currently ... I have filed for my green card. I am in F2A category, my F1 expired after I graduated so I have no other status.

My husband gets his citizenship middle of next year.

[RICARDO4EVA2 194]

Currently ... I have filed for my green card. I am in F2A category, my F1 expired after I graduated so I have no other status.

My husband gets his citizenship middle of next year.

ok... You are Illegally Residing or out-of-status in the USA (immigration status).

You should pray and HOPE that your priority date does not come current for you by then (though it would not help me with my case). You're not able to adjust your status here .. in america because your illegal presence cant be forgiven because it's not a perk for LPRs. If your husband gets his citizenship then you can rest freely and i would halt communication to the NVC once the case is there but not letting a year pass. If he's not eligible to get citizenship then your interview would be conducted in your home country.

Edited June 29, 2011 by RICARDO4EVA2

[Penguin_ie 5,996]

You need to leave. You are currently a overstayer, but if it's been less than 180 days then there is no ban yet. If you get deported, there would be a waiver needed to get you back in.

[JimVaPhuong 4,863]

What exactly did you file with USCIS? Was it an I-130 and I-485, or just an I-130? I suspect it was just an I-130 because an I-485 would not have been accepted from you unless an I-130 had been approved and your priority date was current. In other words, I don't think you actually applied for a green card. I think you only petitioned for a visa number.

As others have said, even if your priority date becomes current you cannot adjust status and get a green card. INA 245(a) requires that you have maintained your non-immigrant status in the US in order to be eligible to adjust status. An exception is made for immediate relatives of US citizens, but not for relatives of LPR's.

I don't know exactly when your status ended, but it sounds like you've probably got more than six months of unlawful presence. If you leave the US you will receive an automatic ban from returning. The ban is three years if you've overstayed more than six months, and ten years if you've overstayed more than a year. The ban doesn't go into effect until you leave the US. Any visa application you submit at any US consulate during the time the ban is in effect would be denied. It's possible to apply for a waiver of the ban after the visa has been denied, but it requires proving your LPR spouse would suffer extreme hardship if you aren't granted a visa, and those waivers are difficult to get.

If I were in your shoes I would not leave the US right now. When your husband becomes a US citizen he can have the I-130 petition upgraded to an IR1 visa classification. You would no longer have to wait for a priority date to become current, and you'd be able to adjust status in spite of the overstay. The downside is that you're subject to deportation while you're waiting.

Don't remain in the US thinking you'll be able to adjust status when your priority date becomes current. You won't. The only path that will allow you to get a green card without having to leave the US and be subjected to the ban is if your husband becomes a US citizen.

[Newbie11 0]

Oh wow I didn't know it would be that difficult. I was told if I remain in the US changing my status would be quicker, rather than going back and applying which could take up to 4 years. I didn't know visa issues are so much more complicated. Yes I applied for an I-130 and the green card process has still not started. My husband gets his citizenship in June 2012, so I am hoping there are no issues until then!

[RICARDO4EVA2 194]

Oh wow I didn't know it would be that difficult. I was told if I remain in the US changing my status would be quicker, rather than going back and applying which could take up to 4 years. I didn't know visa issues are so much more complicated. Yes I applied for an I-130 and the green card process has still not started. My husband gets his citizenship in June 2012, so I am hoping there are no issues until then!

If there nothing now/then that would prevent him them you are ok to be pardoned. But not everything you hear is true.

[miraya 8]

What exactly did you file with USCIS? Was it an I-130 and I-485, or just an I-130? I suspect it was just an I-130 because an I-485 would not have been accepted from you unless an I-130 had been approved and your priority date was current. In other words, I don't think you actually applied for a green card. I think you only petitioned for a visa number.

As others have said, even if your priority date becomes current you cannot adjust status and get a green card. INA 245(a) requires that you have maintained your non-immigrant status in the US in order to be eligible to adjust status. An exception is made for immediate relatives of US citizens, but not for relatives of LPR's.

I don't know exactly when your status ended, but it sounds like you've probably got more than six months of unlawful presence. If you leave the US you will receive an automatic ban from returning. The ban is three years if you've overstayed more than six months, and ten years if you've overstayed more than a year. The ban doesn't go into effect until you leave the US. Any visa application you submit at any US consulate during the time the ban is in effect would be denied. It's possible to apply for a waiver of the ban after the visa has been denied, but it requires proving your LPR spouse would suffer extreme hardship if you aren't granted a visa, and those waivers are difficult to get.

If I were in your shoes I would not leave the US right now. When your husband becomes a US citizen he can have the I-130 petition upgraded to an IR1 visa classification. You would no longer have to wait for a priority date to become current, and you'd be able to adjust status in spite of the overstay. The downside is that you're subject to deportation while you're waiting.

Don't remain in the US thinking you'll be able to adjust status when your priority date becomes current. You won't. The only path that will allow you to get a green card without having to leave the US and be subjected to the ban is if your husband becomes a US citizen.

One correction here...I-485 can be applied when the PD is current.There is no need to wait for 1-130 approval.

[miraya 8]

Hi All,

I am new to VisaJourney and recently started reading all the topics in this forum and thought someone out there would be able to help me as well. I am a british citizen, I came to the US to study on a F1 visa. I met my husband here and we got married 2 years ago but I maintained my student visa till I got done last year and then applied for change of status to F2A (as my husband is a green card holder). I am residing in the US. I applied in September 2010, and when I checked the Visa Bulletin the PD was June 2010! It moved all the way till August and just when my turn was about to come it moved all the way back to 2008. Oh well... just my luck!

Anyway, I was wondering what happens next? So I got a letter from USCIS confirming that they received my documents, but then the PD moved back. Incase in the next few months it does go to 2010, what should I expect? Do I get my green card immediately. How long is the wait till I get my green card (being a british citizen)?. I read a few topics on this forum that people are getting interview calls even though their PD is still not current. Should I be expecting a call soon too as my PD is Sept 2010?

All help would be appreciated Thanks!

It is better if you hire an immigration lawyer at this point.Only he can guide you none of us can..

[RICARDO4EVA2 194]

The I-130 must be approved because it approves the relationship.

[Brother Hesekiel 2,236]

If your graduation was more than 180 days ago, meaning if you accumulated more than 180 days of unlawful presence, the only thing you can do, really, is to stay put and out of trouble until your husband becomes a US citizen. That would be approximately one year from now.

If you have no accumulated 180 days of overstay yet, returning to the Ukay 'til then is a viable option as you would not trigger the 3-year bar fro unlawful presence over 180 days.

Good luck.

[Casprd 167]

Oh wow I didn't know it would be that difficult. I was told if I remain in the US changing my status would be quicker, rather than going back and applying which could take up to 4 years. I didn't know visa issues are so much more complicated. Yes I applied for an I-130 and the green card process has still not started. My husband gets his citizenship in June 2012, so I am hoping there are no issues until then!

Silly question, but everyone is assuming that the husband will get citizenship when the time comes. My question is how will this situation impact his petition for citizenship? Will the fact that he is married to and living with someone who is currently out of status and has been for more than a year potentially be a cause for denying his application?

[ATPEACE 43]

Also doesn't out of staus means no job, so waiting around for 1 year or more, no job, no school. what will you do?

[Export of Dhaka 8]

I am sorry but you guys are ALL WRONG. Some non-immigrants entering the US with a "D/S" on their I-94, which is the case for F-1 visa holders, DO NOT automatically start "unlawful presence" from the date they become out of status. An out-of-status student starts accruing "unlawful presence" ONLY after USCIS or an Immigration judge OFFICIALLY determines that he/she is out of status, and the accrual of unlawful presence starts ON the day it is determined.

Out of status IS NOT the same as unlawful presence for some classes of non-immigrants.