CR-1 for Spouse of US Citizen that over stayed.

[YozhikandBulochka 3]

Hello Everybody,

I really am posting this in order to get some ideas and comments from people on this site. A friend of a Friend of a friend, (LOL), has been here since 2010 illegally. Now she fell in love with a guy who recent (about 6 months ago) received his citizenship after they got married. Now she has begun I believe the CR-1 Process. I was wondering what are her chances of getting her green card given the circumstances. My knowledge tells me that she is screwed assuming that the govt doesn't make exceptions for the rule. She will have to return to her country and therefore receiving a X year ban for overstaying and her husband will be devastated But I wanted to ask you guys who might have more experience in this area what you think. Thanks for your time. All post relating to the subject is welcomed.

Yozhik

[lost_at_sea 995]

Hello Everybody,

I really am posting this in order to get some ideas and comments from people on this site. A friend of a Friend of a friend, (LOL), has been here since 2010 illegally. Now she fell in love with a guy who recent (about 6 months ago) received his citizenship after they got married. Now she has begun I believe the CR-1 Process. I was wondering what are her chances of getting her green card given the circumstances. My knowledge tells me that she is screwed assuming that the govt doesn't make exceptions for the rule. She will have to return to her country and therefore receiving a X year ban for overstaying and her husband will be devastated But I wanted to ask you guys who might have more experience in this area what you think. Thanks for your time. All post relating to the subject is welcomed.

Yozhik

Ergh. That sounds nasty. She's still in the States? Ignoring the overstay, people who enter the USA and get married and stay tend to follow the "I-130 / Adjustment of Status" method to change their immigration status so I imagine they're doing this: http://www.visajourney.com/content/i130guide2

An overstay of 3 years is really serious and I think there's a good chance she's going to get deported and banned from the country for a number of years.

This is almost exactly the same question you're asking being answered by a lawyer (VWP though, I don't know where his wife was from originally and what visa she entered on, so it still may be bad info):

Edited May 22, 2013 by lost_at_sea

[lost_at_sea 995]

Oh. It would also be useful to know if she ever entered legally (like on a visa, but the visa expired) or if she flat out entered illegally (like, no visa or papers at all).

[Done--Really 331]

Ditto--we need to EXACTLY how and when she entered, visa, VWP, without inspection, etc. ANd also critically important to know if she has been here the entire time or if she ever left and returned without inspection, and then we can give sound advice.

[Blueberry Pancake 311]

Also, there is a difference between unlawful presence vs. unlawful status.

read here:

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-17138/0-0-0-18383.html#0-0-0-1843

[Asia 2,498]

If she entered on a visa and is still in the USA, her being out of status and illegal working is kinda "forgiven" after being married to the US citizen. But she can't leave. If she left already, she triggered her ban.

[YozhikandBulochka 3]

She entered legally under J-1 status. Then her visa expired starting the overstay process and has been livin here ever since. then got married 2 years ago and now she is trying to get her green card.

Edited May 23, 2013 by YozhikandBulochka

[NikLR 13,227]

She may need to file some waivers and there is a great forum for waivers. http://immigrate2us.net/forum/content.php

I suggest they look into it seriously. The poster that said being forgiven an overstay is normally granted to AOS filers is correct. However she cannot leave the country without a waiver, advance parole or a green card. She will trigger the ban and that is a whole new set of waivers.

[YozhikandBulochka 3]

However she cannot leave the country without a waiver, advance parole or a green card. She will trigger the ban and that is a whole new set of waivers.

Does that mean even with a valid green card she can't return to her home country because leaving then trying to re-enter would create issues because the ban would have already been triggered?

[NikLR 13,227]

Does that mean even with a valid green card she can't return to her home country because leaving then trying to re-enter would create issues because the ban would have already been triggered?

No.

It means she should have a valid green card, advance parole or a special waiver granting her the ability to leave and come back before trying to go anywhere. If she obtains a green card via adjustment of status, her overstay is washed away. However they have new waivers for people who are not eligible for AOS so they can do the consular interview in their home country without triggering a ban. It's a good thing to look into if she's not eligible for AOS (adjustment of status.)

[Hypnos 6,576]

The "friend" should also investigate whether or not they are subject to the two year HRR on their J-1.

If they are then they are ineligible to file for AoS without either (a) waiting two years in their home country, or (b) obtaining a waiver.

[Blueberry Pancake 311]

What does her I-94 form say?

If it's "D/S" - then she hasn't accrued any unlawful presence. Thus, no bans apply.

Find out more details and read the link I posted earlier.

http://www.uscis.gov...html#0-0-0-1843

[Hypnos 6,576]

A J-1 holder accrues unlawful presence once they are out of status. The OP indicates that the person has been out of status since 2010. This is all fairly moot through; if she is filing for AoS as the spouse of a US citizen then any overstay is not penalised at adjudication (this is not a CR-1 visa as the OP indicates; if she is already present in the US then she is seeking adjustment of status, not a visa).

I'd be more concerned about the HRR, if there is one.

[newacct 688]

A J-1 holder accrues unlawful presence once they are out of status. The OP indicates that the person has been out of status since 2010.

This is flat out wrong. One does not accrue unlawul presence by just being "out of status".

Edited May 24, 2013 by newacct

[newacct 688]

No.

It means she should have a valid green card, advance parole or a special waiver granting her the ability to leave and come back before trying to go anywhere. If she obtains a green card via adjustment of status, her overstay is washed away. However they have new waivers for people who are not eligible for AOS so they can do the consular interview in their home country without triggering a ban. It's a good thing to look into if she's not eligible for AOS (adjustment of status.)

If she is not subject to the 2-year home stay requirement, then from what what was mentioned, she is eligible for AOS.