Got married to a Permanent Resident in a WVP !

[tsobrazil 0]

Hello everyone, hopefully somebody can help me!

I've been living in the US for 6 years.

First, I stayed for 6 months as a tourist and than I adjusted for student. Unfortunately, I stayed out of status for a month and decided to go back to Brazil to get a F-1 VISA. Therefore, I came back and stayed another 4 years as a F-1 student. Moreover, in July of 2011 I graduated and decided to go back to Brazil leaving my girlfriend in the States, who would move to Brazil in a near future. In the other hand, things did not go well back home and I decided to come back to the US, and I used my Italian passport to visit and me and my wife now decided to get married. She has a green card for 8 years and will be applying for citizenship this week. We got married last December, and on February 18th 2012 I became out of status. On February 16th, USCIS received our I-130 form and today I received my I-797C with an alien number. I've been reading lots of information online and I don't know where to go from here. Should I wait for her to become a citizen to apply for I-485, can I do it now even though I entered the US with a WVP? Please, I know is a different case but I would love to receive some suggestions!

Best regards.

Thiago

[ceadsearc 516]

You can't do it now because overstay is not forgiven for spouses of LPRs nor is a visa immediately available. You will either have to wait out of status in the US for her to become a citizen and then submit the I-485 (during which time you are at risk for deportation if caught) or return to your country and wait for her to get citizenship and file for the CR-1 visa. It doesn't sound like you have overstayed enough for a ban but you won't be able to use VWP anymore.

I'm not sure if using different passports to enter the US will cause a problem - presumably your past overstay should have already made you ineligible to use VWP so coming in on another passport to evade that may lead to trouble. Hopefully someone else can advise on that matter.

[jaycali 415]

Hello everyone, hopefully somebody can help me!I've been living in the US for 6 years. First, I stayed for 6 months as a tourist and than I adjusted for student. Unfortunately, I stayed out of status for a month and decided to go back to Brazil to get a F-1 VISA. Therefore, I came back and stayed another 4 years as a F-1 student. Moreover, in July of 2011 I graduated and decided to go back to Brazil leaving my girlfriend in the States, who would move to Brazil in a near future. In the other hand, things did not go well back home and I decided to come back to the US, and I used my Italian passport to visit and me and my wife now decided to get married. She has a green card for 8 years and will be applying for citizenship this week. We got married last December, and on February 18th 2012 I became out of status. On February 16th, USCIS received our I-130 form and today I received my I-797C with an alien number. I've been reading lots of information online and I don't know where to go from here. Should I wait for her to become a citizen to apply for I-485, can I do it now even though I entered the US with a WVP? Please, I know is a different case but I would love to receive some suggestions!Best regards.Thiago

When will she get her US citizenship? I'm not sure how long that takes, but she needs to get it asap.

Overstay up to 180 days is forgiven for spouses of US citizens - not for spouses of LPRs. If she gets her citizenship before your 180 days run out, you can file adjustment of status then and you should be fine.

If not, you have a problem. Generally, if someone has overstayed more than 180 days, they have to leave the US before filing an I-130. You'll be approved at USCIS, and case will go through NVC and then to the consulate. The consulate will likely deny your visa application due to the overstay, and you may face a bar of 3 - 10 years, depending on whether your overstay was more than a year or not.

If this is the case, your wife will have to file an I-601 waiver, and prove "extreme hardship" - Basically, she'll need very good reasons for why she has to have you in the US, and why she absolutely cannot move to Brazil..

Also, how did you manage to get a second F-1 visa after you were out of status on the first one? It sounds like you used a different passport to enter the US the second time. If this is the case, they may believe you intentionally attempted to evade immigration law by using a different passport. The F-1 application should ask if you've ever been in the US unlawfully.. If you answered "no" to that - It's very serious..

If I were you, I'd at least consult with a lawyer before filing anything.

Edited February 26, 2012 by jhsm85

[Penguin_ie 5,996]

**** Moving from AOS from Family visa forum to AOS from Tourist,... as this is how the OP entered the USA *****

[ceadsearc 516]

Any amount of overstay is overlooked for spouses of USCs with no other adverse factors. After 180 a ban is incurred IF they leave the country.

But as was said, if there was lying or evading in order to get into this country despite prior overstays, you will probably have a big problem regardless. I'd consult a lawyer on that front.

[YupYup 4]

Any amount of overstay is overlooked for spouses of USCs with no other adverse factors. After 180 a ban is incurred IF they leave the country.

But as was said, if there was lying or evading in order to get into this country despite prior overstays, you will probably have a big problem regardless. I'd consult a lawyer on that front.

she's an LPR, not a US citizen yet! so the overstay WON'T be forgiven.

Edited February 26, 2012 by Symply_Me

[Dakine10 5,452]

You can't do it now because overstay is not forgiven for spouses of LPRs nor is a visa immediately available. You will either have to wait out of status in the US for her to become a citizen and then submit the I-485 (during which time you are at risk for deportation if caught) or return to your country and wait for her to get citizenship and file for the CR-1 visa. It doesn't sound like you have overstayed enough for a ban but you won't be able to use VWP anymore.

I'm not sure if using different passports to enter the US will cause a problem - presumably your past overstay should have already made you ineligible to use VWP so coming in on another passport to evade that may lead to trouble. Hopefully someone else can advise on that matter.

I agree, overstay won't be an issue in the end, but the possibility of misrepresentation may be. I don't often see the need for immigration attorney consult, but it think it may be advisable in this case.

[Dakine10 5,452]

she's an LPR, not a US citizen yet! so the overstay WON'T be forgiven.

I would guess this was pursuant to the previous advice, which was to wait and file the I-485 after his spouse becomes a USC.

[ceadsearc 516]

she's an LPR, not a US citizen yet! so the overstay WON'T be forgiven.

As I said in my original response. My second response was regarding someone else's incorrect statement that were the spouse to become a USC, only 180 days of overstay would be forgiven. If the spouse remains an LPR a visa won't be available for years anyway so AOS won't be an option, period.