Tourist just married to PR who just filed for naturalization

[ezzie 7]

This question is for my sister who came last November 2011 in the US to visit me. I showed her around, and she reconnected with her friends. We met her former HS classmate, and they fell in love. They recently got married, and the guy filed for naturalization yesterday 2/29/2012.

My question:

My sister's visa expires in May. And the Certificate of Citizenship of her husband might come out after 3 months the earliest. Should they wait to file the I-130 when the husband becomes USC? Her tourist visa expires by then.

Or..should they file now, so she wont ne out of status, even if the husband is still LPR?

Any thoughts, suggestions will be highly appreciated..and please, no condemnation. They are really sooo in love....

[Penguin_ie 5,993]

*** Moving from AOS from Family visa to AOS from TOurist, Work.. forum as OP's sister came on a Tourist visa ****

[danver 15]

I hope ur sister will not have any issues after coming here on a tourist visa and marrying an LPR. Tourist visa is not for marriage purposes.

[YupYup 4]

This question is for my sister who came last November 2011 in the US to visit me. I showed her around, and she reconnected with her friends. We met her former HS classmate, and they fell in love. They recently got married, and the guy filed for naturalization yesterday 2/29/2012.

My question:

My sister's visa expires in May. And the Certificate of Citizenship of her husband might come out after 3 months the earliest. Should they wait to file the I-130 when the husband becomes USC? Her tourist visa expires by then.

Or..should they file now, so she wont ne out of status, even if the husband is still LPR?

Any thoughts, suggestions will be highly appreciated..and please, no condemnation. They are really sooo in love....

very complicated situation. overstays are only forgiven for USC. since he's in the progress of getting his citizenship, it could take quite a while until it actually happens. that would mean she is going to be out of status for a while. that could create a problem. filling right now here in the states for AOS is not a good idea, because the progress takes years for a spouse of an LPR to get her greencard. I would suggest taking the safe route with going to her home country before her visa expires and filling CR-1. if she overstays (it depense how long) she will risk a ban between 3 and 10 years.

[Mike Z 8]

My sister's visa expires in May. And the Certificate of Citizenship of her husband might come out after 3 months the earliest. Should they wait to file the I-130 when the husband becomes USC? Her tourist visa expires by then.

Or..should they file now, so she wont ne out of status, even if the husband is still LPR?

Any thoughts, suggestions will be highly appreciated..and please, no condemnation. They are really sooo in love....

as mentioned in majority of other threads on this topic: your sister can not use the tourist visa to come here with the intent of adjusting status. The way you write it sounds like she did not. She will have to show evidence supporting a bona fide marriage ie it wasnt just for the purpose of adjusting status.

I am quite frankly unsure about this special scenario of being married before her husband naturalizes. (so the scenarios below are really more a standard case of adjusting when the partner already is a US citizen)

Could others please comment on this?

Assuming she came just to visit:

My understanding: she cant file on the basis of an LPR. so the two options are for your sister to

- go back home and file via consulate

- wait until naturalization goes through and file then.

filing with or without overstay does not really make a difference as long as filing occurs before 180 days of overstay.

given your timeline of naturalization this should be feasible.

.

(Please bear in mind that it may take a week or more from sending your application in to them giving you a date. so sending 179 days beforehand does not work)

[YupYup 4]

filing with or without overstay does not really make a difference as long as filing occurs before 180 days of overstay.

wrong!

it doe make a difference, because the overstay will be not forgiven. from the time her visa expires until he gets the US citizenship, there will be most likely a overstay while he was and LPR. this time doesn't count as forgiven overstay, because be will become a citizen! there are some potential problems coming forwards her, if he decides to stay here in the US. if they deny her application because of the overstay, she probably already passed the ban-free time!

[ezzie 7]

I hope ur sister will not have any issues after coming here on a tourist visa and marrying an LPR. Tourist visa is not for marriage purposes.

She didn't come here for marriage..she's been here several times. Previous to this visit, she was sent by her company.

Edited March 3, 2012 by ezzie

[ezzie 7]

as mentioned in majority of other threads on this topic: your sister can not use the tourist visa to come here with the intent of adjusting status. The way you write it sounds like she did not. She will have to show evidence supporting a bona fide marriage ie it wasnt just for the purpose of adjusting status.

I am quite frankly unsure about this special scenario of being married before her husband naturalizes. (so the scenarios below are really more a standard case of adjusting when the partner already is a US citizen)

Could others please comment on this?

Assuming she came just to visit:

My understanding: she cant file on the basis of an LPR. so the two options are for your sister to

- go back home and file via consulate

- wait until naturalization goes through and file then.

filing with or without overstay does not really make a difference as long as filing occurs before 180 days of overstay.

given your timeline of naturalization this should be feasible.

.

(Please bear in mind that it may take a week or more from sending your application in to them giving you a date. so sending 179 days beforehand does not work)

Thanks for your reply. Appreciate it. Hoping some will still give their inputs.

ezzie

[ceadsearc 516]

Filing now won't keep her in status. The I-485 is what gives temporary protected status, not the I-130. Since a visa isn't immediately available to the spouse of an LPR, she can't file the I-485 now.

She can either have her husband file as the spouse of an LPR, return to her country before her visa expires, and continue the process from there (upgrading once he receives his citizenship). Or, if she chooses to remain here, she will be out of status. She won't be able to adjust status until he becomes a citizen, and she won't be able to leave the country until her AOS is completed.

[aaron2020 11,651]

Filing now won't keep her in status. The I-485 is what gives temporary protected status, not the I-130. Since a visa isn't immediately available to the spouse of an LPR, she can't file the I-485 now.

She can either have her husband file as the spouse of an LPR, return to her country before her visa expires, and continue the process from there (upgrading once he receives his citizenship). Or, if she chooses to remain here, she will be out of status. She won't be able to adjust status until he becomes a citizen, and she won't be able to leave the country until her AOS is completed.

ceadsearc has the correct answer.

Essentially two choices; 1) Return home and wait for an immigration visa (the legal and safe way), or 2) remain in the US as a visa overstay with the knowledge that she could be arrested and deported until she gets her Advance Parole when her US citizen husband files for her.

Edited March 3, 2012 by aaron2020

[I AM NOT THAT GUY 5,715]

ceadsearc has the correct answer.

Essentially two choices; 1) Return home and wait for an immigration visa (the legal and safe way), or 2) remain in the US as a visa overstay with the knowledge that she could be arrested and deported until she gets her Advance Parole when her US citizen husband files for her.

Advance Parole won't do her any good if she overstays. The EAD would give her a document to prove her status, however. Get married. Stay in the US. File when hubby has Naturalization Certificate in hand. Don't travel in the meantime. Only requirement is that she entered the country legally.

[Mike Z 8]

Advance Parole won't do her any good if she overstays. The EAD would give her a document to prove her status, however. Get married. Stay in the US. File when hubby has Naturalization Certificate in hand. Don't travel in the meantime. Only requirement is that she entered the country legally.

just for my understanding, based on what precedent is Advance Parole no good in case of an overstay?

[ezzie 7]

Thank you guys for your replies. She will look into her options very well.

just for my understanding, based on what precedent is Advance Parole no good in case of an overstay?

Anyone?

[Penguin_ie 5,993]

just for my understanding, based on what precedent is Advance Parole no good in case of an overstay?

That is correct, even if you have AP they won't let you back in the country if you had an overstay.

[Little_My 464]

just for my understanding, based on what precedent is Advance Parole no good in case of an overstay?

An overstay of 180 days or more results in a ban of 3 years, and an overstay of 365 days or more in a 10 year ban. The ban doesn't take effect until the person who overstayed leaves the US - and having an AP won't protect a person from a ban. If a person who has overstayed leaves the US with a pending AOS, he/she won't be allowed back in, even if he/she has an AP.

Overstays of less than 180 days are a bit of a grey area, but since paroling a foreigner back in the US with an AP is in the hands of the CBP officer, it's safer to not travel abroad at all with any number of overstay days, even if it is less than 180.