Best way out?

[jasongabby 0]

My wife came here on a K1, we got married within the 90-day time limit. We never got around to filing the AOS paperwork, and now she's been here over 6 months on an expired visa. My understanding is that USCIS is generally pretty forgiving for late AOS filings - BUT... we may not want to stay here for permanent residency anymore. Not right now, at least. For various reasons, we're considering going back to her home country (where I have a home) to live there for a couple/few more years before coming back to the united states to get her a permanent visa.

My question is... what's the best way to go about this? My understanding is that since she's stayed over 6 months on an expired visa she will be barred from any kind of re-entry into the US for 3 years. Is there any way to avoid this? I'd like to at least bring her back with me for the holidays. I was considering filing the AOS, getting her AP, then just overstaying the AP and abandoning the AOS/GC process. Yet I've read that that may be just as bad, if not worse. How would you go about it? We're not necessarily in a big hurry, but we are thinking that staying here half-time or more for the next 3 years may not be the right thing for us right now.

[jasongabby 0]

Maybe we should stay here long enough fo her to get her green card (~6-8 months?) then go back and overstay/abandon the greencard? Would she still get barred from re-entry?

[Penguin_ie 5,997]

Please fill in your timeline. A lot will depend on when she entered the USA and you got .

[Harpa Timsah 13,258]

She can't use AP anymore because she has a ban on her head (you cannot use AP if you have a ban). The only way to avoid the ban is to get a GC. If I were you, I would file for the GC, wait here, and then move abroad and get a reentry permit. She can live abroad for up to two years with the reentry permit.

[jasongabby 0]

She can't use AP anymore because she has a ban on her head (you cannot use AP if you have a ban). The only way to avoid the ban is to get a GC. If I were you, I would file for the GC, wait here, and then move abroad and get a reentry permit. She can live abroad for up to two years with the reentry permit.

Wow, thank you. That actually sounds like a very reasonable alternative. So we get the GC, then stay out for less than 2 years, then when we return the 3 year residency minimum for applying citizenship resets since we were out for so long, right? And, citizenship aside, the USCIS will be expecting for us to get serious and stay awhile at that point before another extended leave.... but, yeah, that seems fair enough.

[Harpa Timsah 13,258]

Yes, the citizenship clock will be reset. The reentry permit gives her the permission to be out for so long without abandoning her residency.

Another wrench in the mix, however. You will need to file for removal of conditions 2 years after her GC is approved. You can file from abroad, but she will need to come to the US for fingerprinting and an interview, if you have one (interview is usually waived).

[Lainie B 465]

Yes, the citizenship clock will be reset. The reentry permit gives her the permission to be out for so long without abandoning her residency.

Another wrench in the mix, however. You will need to file for removal of conditions 2 years after her GC is approved. You can file from abroad, but she will need to come to the US for fingerprinting and an interview, if you have one (interview is usually waived).

Unless they have already been married for 2 years, if so they can file 1-130 and get 10-year GC

[Harpa Timsah 13,258]

Unless they have already been married for 2 years, if so they can file 1-130 and get 10-year GC

He said in the first post she's been here 6 months.

[Lainie B 465]

He said in the first post she's been here 6 months.

He said over 6 months. Their timeline is confusing because the I-129f was done in 2010 and the US entry and marriage was in May and August 2012 (in the future!). So I wasn't sure. They may have meant entered and married in 2010.

Edited March 13, 2012 by Lainie B

[jasongabby 0]

He said over 6 months. Their timeline is confusing because the I-129f was done in 2010 and the US entry and marriage was in May and August 2012 (in the future!). So I wasn't sure. They may have meant entered and married in 2010.

Oh, sorry. Thank you both for your help. I just fixed my timeline. We arrived 2011-05-28, married 2011-08-12, and haven't filed for AOS yet. So visa's been expired a little over 6 months.

[jasongabby 0]

Yes, the citizenship clock will be reset. The reentry permit gives her the permission to be out for so long without abandoning her residency.

Another wrench in the mix, however. You will need to file for removal of conditions 2 years after her GC is approved. You can file from abroad, but she will need to come to the US for fingerprinting and an interview, if you have one (interview is usually waived).

Thank you again. In that case, I'm guessing we'll leave shortly after we get the reentry permit... which as I gather will take 3-6 months. Man, this stuff goes slowly. (Of course, who am I to critique when I'm the one who's filing 6 months late?)

How do you guys know all this stuff? No matter how much I google/research I just cannot seem to keep it all straight.

[Harpa Timsah 13,258]

uscis.gov and reading this website. Also they tell you things when you go through the process (like the AP says on it "not to be used if there is any overstay" etc.)

Here is the USCIS pamphlet on Reentry Permits. http://www.uscis.gov/USCIS/Resources/B5en.pdf

[Grant PDX 183]

She doesn't have a ban. She entered legally and she is here legally. The requirement for the K-1 is to be married within 90 days. They did that. She is totally fine. However, she can't re-enter the country, apply for citizenship, work, drive (in most places) etc. until she does the AOS. She could stay here as long as she wants legally at this point. But with some significant limitations.

With that said, the rest of the information above is correct. Apply for the AOS and get your GC before traveling. Anything else would be painful, expensive, and time consuming in comparison to getting the GC.

At this point there is no ban and she is legally in the country. She just can't come back if she leaves.

Good luck

[Harpa Timsah 13,258]

She doesn't have a ban. She entered legally and she is here legally. The requirement for the K-1 is to be married within 90 days. They did that. She is totally fine. However, she can't re-enter the country, apply for citizenship, work, drive (in most places) etc. until she does the AOS. She could stay here as long as she wants legally at this point. But with some significant limitations.

With that said, the rest of the information above is correct. Apply for the AOS and get your GC before traveling. Anything else would be painful, expensive, and time consuming in comparison to getting the GC.

At this point there is no ban and she is legally in the country. She just can't come back if she leaves.

Good luck

She has enough overstay days to trigger a ban. It has not been triggered yet, but it will be triggered the instant she leaves the country, until her GC is granted.

Once the I-94 expires the alien begins accruing days of illegal presence. Once the alien gets 180 days, there is a ban in place that will prevent reentry. Once the alien gets the GC approved, then the ban no longer exists.

The OP's wife is not legally in the country, but that overstay will be overlooked when the GC is granted. Until that point, she could be picked up by ICE and detained. She wouldn't be deported, but would be ordered to file AOS immediately.