Getting i130/i485 in before 6 month overstay

[106206 15]

Hello,

My Fiancee and I are getting married on July 16th.

Our intention is to prepare all paperwork so we could submit I130/I485 & related forms as quickly as possible July 18th (Monday).

My fiancee came here on a Tourist visa 8/15/10, her I94 was for 6 months, expiring 2/11/2011.

If we lose 5 days due to short months (Feb, Apr, Jun) it would seem to me she will be overstayed by 6 months on 8/5/2011.

She is still in the USA.

I came to learn that the marriage certificate in GA takes up to 4 weeks for processing before I can get an official certified copy as it needs to get registered.

I opened a separate thread (link) to ask questions specifically on how 'complete' the marriage license needs to be. What I got back is it needs to be fully recorded.

4 week lead time means that we may not be able to send in the I130/I485 until 8/15. I am working to see what I can do to expedite that process right now.

Questions:

1. What defines the date of the I130/I485 application? Is it what is on the form, when it was mailed, when it was received, when it was opened up by someone, etc.

2. Based on above, if we assume the package needs to be received by 7/31 to give a few extra days, when would it have to go out? Can I send it FexEx overnight?

3. A large concern on our part is the premise that we should get this in before the 6 month overstay. Is that a valid premise? She has not left the USA and the only proof she is still in the USA will be what's in the I130/I485 package (marriage license, financial records, etc.)

Thanks in advance guys!

[Know_Ledge 6]

Hello,

My Fiancee and I are getting married on July 16th.

Our intention is to prepare all paperwork so we could submit I130/I485 & related forms as quickly as possible July 18th (Monday).

My fiancee came here on a Tourist visa 8/15/10, her I94 was for 6 months, expiring 2/11/2011.

If we lose 5 days due to short months (Feb, Apr, Jun) it would seem to me she will be overstayed by 6 months on 8/5/2011.

She is still in the USA.

I came to learn that the marriage certificate in GA takes up to 4 weeks for processing before I can get an official certified copy as it needs to get registered.

I opened a separate thread (link) to ask questions specifically on how 'complete' the marriage license needs to be. What I got back is it needs to be fully recorded.

4 week lead time means that we may not be able to send in the I130/I485 until 8/15. I am working to see what I can do to expedite that process right now.

Questions:

1. What defines the date of the I130/I485 application? Is it what is on the form, when it was mailed, when it was received, when it was opened up by someone, etc.

2. Based on above, if we assume the package needs to be received by 7/31 to give a few extra days, when would it have to go out? Can I send it FexEx overnight?

3. A large concern on our part is the premise that we should get this in before the 6 month overstay. Is that a valid premise? She has not left the USA and the only proof she is still in the USA will be what's in the I130/I485 package (marriage license, financial records, etc.)

Thanks in advance guys!

Hello,

I hope my answer will help, I'm just sharing my experience but I'm sure other people will chime in too. Your wife and I are kinda in the same boat. I've heard that once your spouse is a US Citizen, your overstay is forgiven. I also came on a tourist visa and got married a month before the i94 expired (this was not planned, my hubby swept me off my feet and surprised the heck out of me :-) ) My i-94 expired in Jan 2011 and I got married May 3. 2011. We filed the paperwork 2 days after and is currently being processed(it was going really fast too )

Word of advise...When you decide to file, make sure you submit all the necessary forms in a very organized manner to avoid any delays and hence expedite the process. We used a lawyer and she forgot to tell us about 2 forms which I have now received a RFE for.

In a nutshell...the overstay will be forgiven, just be able to prove(if asked) that the marriage was not planned, that would be visa fraud.

Good luck

[Harpa Timsah 13,258]

Overstay is irrelevant/forgiven for immediate relatives of US Citizens, which includes a spouse. The new period of authorized stay begins when the paperwork is opened and inspected, which takes around 5 days after they receive it, but sometimes up to a month. Either way, with that much overstay, I wouldn't use AP (def. if you have 6 months or more, but very close to it is also worrisome). You will be approved for AP but you can't use it. The other scenario is if you are denied (rare) then you would have a ban. However, once you are approved, the overstay will be erased. Good luck.

[Deputy Purple 1,294]

As long as the AOS is approved the only impact the overstay will have is voiding AP (Advance Parole, which would allow the Beneficiary to travel out of the US while the application is processing) and that happened with the first day of overstay.

[106206 15]

Thanks for the great information....

Our attorney says that what's on the table is AP. If we get the package in before 6 month overstay then we would be OK, if not, then the AP would not be granted.

What I hear you guys saying is a bit different, which is that it gets granted but in reality there's a travel ban in place.

Is there any definitive way to confirm if the ban is placed or not? So if AP is granted yet a ban is in effect, you do not mistakenly travel?

Aside from this I found that the county next door does a much faster turnaround of the marriage certificate. With this we can likely FedEx the AOS package to USCIS no later than 7/18 which would be about 14 days before a 6 month overstay.

What happens if we end up in an overstay condition (AP granted or otherwise) and she takes a domestic flight? Should ICE check her status at the security checkpoint, is she subject to deportation flying domestically?

[Deputy Purple 1,294]

AP will be issued if applied for, they don't check to see if it the beneficiary is in overstay or not.

Domestic travel is fine, just carry your NOA1 with you in case your status is question (for example travelling within 100 miles of the US Border). The NOA1 proves she is currently legally present in the US.

Something to remember is that CBP can use their discretion to deny entry regardless of having AP or not. What AP does is protect the beneficiary from automatically abandoning their status as an applicant for Adjustment of Status, it doesn't guarantee anything else. For example you could be denied reentry based on overstaying the Visa even without a entry ban for length of overstay, remember that VWP is lost with even 1 day of overstay. I can't say for sure how it would be effected with a valid B Class Visa but why take the chance?

[Harpa Timsah 13,258]

Your AP will be issued. A warning will come with it that if you travel internationally, even if you have this document, and you have 180 days of overstay, you will be banned from reentry. Domestic travel is fine.

I wouldn't travel with the AP in your case anyway. CBP can use their discretion to deny your entry, and you ALMOST have a ban in place, by 14 days at best. You will probably have the GC in 3-4 months anyway, and can travel then.

[106206 15]

Thanks guys for the detailed advice. I feel a lot better knowing this information. We will proceed forward with expectation that any trips outside the country are not to be taken until the GC arrives.