J1 overstay

[Scribble 1]

Firstly I'd like to say thanx to everyone here, I had my green card approved on our interview on the 21st of July and this forum helped so much.

Secondly, I'm coming here with a issue that my friend got. I met this girl on facebook and we got into talking, so she told me her story which completley shocked me. She met her husband while in US on a J1 work and travel program. They hit it off and were dating for a bit before she had to leave. He is a green card holder and she is a Ukranian national. They kept their relationship going through the internet. Next summer she got another J1 and came to US again. However she did not leave, instead she got married to that guy and stayed. Now she recently gave birth to their baby and its now about a year since she overstayed. Her husband has a 10 year green card. I'm not sure why he hadnt applied for a citizenship. Maybe it hasnt been 3 years yet. But anyway, her child would be a USC, correct? And what is she supposed to do at this point? I already told her that it was a pretty dumb decision to get a J1 again and just stay, but you cant cnahge the past.

Can she get an AOS based on the fact that her hubby is a GC holder? Do they wait for him to get te citezenship? Can she get an AOS based on her child? Can she leave the country with her child? and if she does leave what will happen? (as far as I know they had some fights recently and she was thinking about going back home).

I really feel for the poor girl, shes only 22 and have rushed in the whole baby thing and now absolutely ruined her visa history with overstay. Any thoughts on the situation?

[Harpa Timsah 13,258]

The husband can petition for her, but she would need to wait a few years for her priority date to be current (not immediately available because husband is LPR) and then her overstay would make her ineligible to receive the benefit. Her kid is a USC, but s/he cannot petition for mom until child is 21. If she leaves she will incur a ban, but that seems better to me than being here illegally. I agree, pretty dumb decisions all around.

[Penguin_ie 5,993]

She cannot AOS based on the LPR hubby or the USC child. She could if thy hubby was a USC or the child over 21.

If she leaves, there will be a 10 year ban, assuming she's overstayed more than a year. On taking the child with her- yes she can in principle, but it will depend on the custody arrangement with the husband.

[Scribble 1]

She cannot AOS based on the LPR hubby or the USC child. She could if thy hubby was a USC or the child over 21.

If she leaves, there will be a 10 year ban, assuming she's overstayed more than a year. On taking the child with her- yes she can in principle, but it will depend on the custody arrangement with the husband.

What if there are no custody arrangements? As in- she just taskes off and leaves. Does she need her husbands approval or like a letter or smth in order to take the kid with her? (I strongly advised against just takin the kid without saying anything as it would be kidnapping but I think she doesnt undertand the consequences)

At any rate- so her husband can apply for USC after 3 years of holding a green card/ correct? And after that she could try to AOS I guess.

Sorry about my rumbling, just the whole thing kinda puzzled me a bit and I thought I have researched on immigration laws lol

And then she would have to tell the office that she did have and intent and she will be denied and will be deported, wouldnt she? Thats a sad story.

Harpa Timsah

So with him being a GC holder and her overstay she will be denied AOS?

[Penguin_ie 5,993]

I know I have had friends who wanted to take their child on holidays, and only one parent went with the child, and they got stopped at the airport because they had no signed letter from the other parent- no divorce situation, just a holiday. Also if the child doesn't have a US passport yet, both parents need to sign to apply for it. Plus yes, there is the whole illegal/ kidnapping thing... So doing that and getting caught- which is likely- would make it look bad for her once custody is being decided in the courts.

The husband needs to have a greencard for 5 years before applying for citizenship. One he has citizenship, he can apply for the overstay wife's AOS. If she hasn't been deported by then, she will probably be approved for the AOS; an overstay is a non-issue when adjusting status based on marriage to a USC. While he is a greencard holder, he cannot apply for her.

[Brother Hesekiel 2,236]

Scribble,

she is not eligible for AOS because her husband is not a US citizen.

She will be eligible for AOS once her priority date becomes current, which (pulling it out of the back of my head without checking the Visa Bulletin) is about 3 years and 4 months right now, plus 5 months for the I-130 itself. Once her priority date becomes current, she needs to have been lawfully in the US, so as somebody who overstayed, she again is not eligible for AOS.

That all is different with a US citizen spouse.

The fact that her baby is a US citizen has no bearing.

In order to take her baby out of the country, he or she needs a US passport. That requires the written consent of the child's father. If she tries to remove the child without the father's consent, that's child abduction. If the father presses charges the US consulate in the Ukraine will start a fire that will make her feet melt. That's a felony, by the way, so she would never be able to come back to the US after that.

[Scribble 1]

Well that sounds like she is pretty screwed. Oh well. I laways wondered how situations like these supposed to work out. And now I know the correct answer. Thanx guys. I'm just gonna stay out of it. Their "lawer" told them to just fill the forms and mail his taxes and thats it. I thought a) he is dumb b) he will def get them denied. But thats not my place to decide. I might just give her a link to this topic.

PS

I've always liked you Just Bob for your straightforward answers

Edited July 22, 2011 by Scribble

[milimelo 4,481]

This is only if she wants to remain in the US:

Why not get the LPR husband apply for his naturalization (if no adverse issues such as criminal records, non-payment of taxes...). That takes up to 5 months to complete. Could've sent the I-130 to hold the place in line and then just upgrade and do AOS when he has his naturalization certificate in hand.

I hope friend does not also have a 2-yr home residency requirement on her J-1 visa. That would also need to be dealt with if she has the 2yr HRR.