Overstaying, still ok to do AOS?

[mychelle 1]

they did not apply for AOS after marriage. The deal is, the guy was already in the US at that time under a multiple-entry tourist visa (The marriage is legitimate, they really want to marry.) They got married before his stay expired but the stupidiest part of all this is that they did not do anything about AOS because they said, they had no money for an immigration lawyer. So fast forward to a year and a half later...and they still have done anything about it. They're asking people for help now but all I can do is to refer them to a lawyer (who has a payment option plan).

Do you know anyone in this situation? Is the overstay enough grounds for the non-USC to be deported and banned? For how long?

[Anastasia 1]

If the non-USC leaves the US, he'll be banned for 10 years from re-entry (because of over staying for over a year). So whatever they do, he should never travel, even after he gets an AP (if they successfully apply for AOS). That's the only thing I can say really. I have no idea about such situations, it's not a typical immigration route on these forum boards. I think they should talk to a lawyer. They don't have to hire one, they can go for a first free consultation (many lawyers offer first consultation for free) and figure out what'll be the best thing to do.

Edited February 24, 2006 by Anastasia

[eau_xplain 2]

Overstaying a visa is a ground for deportation and banning. For your friend's case, it is a 10-year bar because of the more than 6 months overstay.

Have them file the AOS packet (including the I-130) as soon as possible.

Edited February 24, 2006 by eau_xplain

[Kez/JWolf 6]

They can and should file for AOS as soon as they can... the overstay will be forgiven at AOS interview... if they apply for AOS there is no point in applying for AP as he cant leave the US until he gets his Greencard or the automatic ban of 10 years will be triggered...

They can do this without a lawyer but as sugested before a free 1st consultation might help....

Kezzie

[sameerhanda 0]

I was in the same boat as your friends. Overstay will nto event be brought up at AOS. MAKE SURE YOUR FRIEND does not leave the country thats all is needed from him.

[ChristinaM 0]

The overstay will MOST LIKELY be forgiven. I'm going on a rampage at the moment, because although historically overstays are forgiven on marrying a USC, I can't find any information which says that they automatically will be.

But yes, they need to file for AOS as soon as they can, and under no circumstances leave the US. Marrying from a tourist visa is not uncommon at all; both Kezzie and I did it and we both adjusted cleanly (although there was no overstay on either of our parts).

Wish them luck!

[friedicecream123 0]

clmarsh,

Here is the link: http://uscis.gov/graphics/howdoi/LPReligibility.htm and the quote:

If "otherwise eligible" to immigrate to the U.S., immediate relatives may adjust status to LPR (get a "green card") in the United States even if they may have done any of the following:

* worked without permission,

* remained in the U.S. past the period of lawful admission (e.g., past the expiration date on your I-94) and filed for adjustment of status while in an unlawful status because of that,

* failed otherwise to maintain lawful status and with the proper immigration documentation, or

* have been admitted as a visitor without a visa under sections 212(l) or 217 of the Act (which are the 15-day admission under the Guam visa waiver program and the 90-day admission under the Visa Waiver Program, respectively).

Please note: If a person came into the U.S. illegally, that person is barred from adjusting their status to LPR (cannot obtain a green card) even if he or she marries a U.S. citizen or otherwise becomes an immediate relative. An immediate relative must meet the eligibility requirement of being “inspected and admitted or paroled into the United States.”

[ChristinaM 0]

FIC123 is right, and I stand corrected.

I just prefer to err on the side of caution!!

[friedicecream123 0]

Thanks clmarsh, we need people like you to keep everything in line! And I am sure everyone appreciate it, I know I do! Thanks again!

[ChristinaM 0]

My logic is that it's better to be careful for that 1 case in a million..... Maybe I'm overcautious!

[mychelle 1]

My logic is that it's better to be careful for that 1 case in a million..... Maybe I'm overcautious!

^thank you so much for all the inputs. they're extremely helpful...so now i can actually help them. i asked her to make an appointment with the Legal Aid office in Los Angeles, they offer free immigration consultation. at least she'll have some peace of mind. i "legally" can't explain all of this to her (although i can tell her about it).

sigh...if she only came to me before her husband overstayed...everything would be easier to deal with. now she's scared that he might be banned for staying in the US!