What wife of an LPR can do to stay legally in US?

[meauxna 15]

Well - I was wrong and stand corrected.

*mutters*

OK....this isn't about me being personally right or wrong. I want to understand this and the stuff that Mo just posted above has me ALL CORNFUZZLED......

He can file for her right? That's a point I didn't know.

But....she will have to get in line for a number? So not a regular AOS approval like with see with USC's? Am I right?

At what point is she 'out of status'? Until he's a citizen?

I'm trying to break this down into layman's terms, which I realize probably isn't that simple.....

r-jo,

LPRs may file I-130 for their spouse. Spouse of LPR must wait for a priority date; lately that wait has run 4-5 years. This is because a limited number of visas are available in this category.

Visas for spouses of USCs have no limit, and no wait for a priority date. Sometimes you will see a 'priority date' filled in on paperwork and it will have the recieved date of the application--ie: immediately.

On the I-485, you'll see that it can be filed because 'an immigrant visa number is available for me or will be.." (don't have it in front of me). So the spouse of a USC can file I-485 concurrently with I-130 because the I-130 will on approval make a visa number available for the foreign spouse.

That won't work for an LPR. She can't just wait here for a number to become available; she has to maintain her own legal status until his I-130 would allow her I-485.

Many spouses of LPRs stay here as students, H1-Bs or often, as illegals. Or, they wait outside the US. Notice that the priority date timing is very close to the Natz requirements. Either way, the wait is going to be about 4-6 years.

OP's wife entered as a visitor, claiming that she would return to her home country. Probably admitted for 6 months. Has applied for one extension, usually given for an additional 6 months. She's put in for a second extension, which will likely be denied (I've never seen one extended for other than medical reasons, but I don't know much about it other than that). She becomes out of status as soon as she gets the denial letter on her extension. Then it's another close to two years before he can give her an immediate visa number. If he has to wait a year before he applies, well, let's say he gets his case through in the normal 6 months, and maybe gets his oath ceremony in short order.. 18-24 months from now. They can file the I-485 as soon as his ceremony is done, but she is subject to removal during the time her tourist visa extension is denied and his oath ceremony. And, we still do not know for sure what if any negative impact her unlawful presence has on his naturalization process.

HTH

[rebeccajo 14]

Thanks Mo.

I knew bits and pieces of this stuff but not enough to put the puzzle pieces together. My gut told me she could end up with illegal presence, but I wasn't sure how.

Which just goes to show how things can be complex, and there's plenty of times the opinion of a competent attorney is well worth the money.

[M. 0]

I have yet to see a 6 mo visitor visa be extended *twice* successfully.

Of course, I have yet to see a man eat his own head as well, but I understand David Blaine can do so!

[Cassie 8]

I have nothing else to contribute other than to say

FeniX, if you get to come back, I ain't a dude.

Good luck to you!

[Killer_Clown_2009 0]

meauxna:

the article i posted shows how these judges "circumvent" immigration laws, because they feel that they are stupid and punative, i felt that it related somewhat to this situation

the good authority I mentioned was an immigration lawyer

i've told fen repeatedly that he should consult with a lawyer

I don't want him to take "advice", from me, (if you can call my opinion advice), but I see a lot of information/advice in this forum that is just plan incorrect....at least 2 or 3 times alone in the last few days where someone has hopped in and told an overstay married to a USC to leave the country.......

Fen seems pretty smart, he knows that an overstay is illegal and he knows that we keep on advising him to consult a lawyer.

Edited December 1, 2006 by jane2005

[M. 0]

meauxna:

the article i posted shows how these judges "circumvent" immigration laws, because they feel that they are stupid and punative, i felt that it related somewhat to this situation

the good authority I mentioned was an immigration lawyer

i've told fen repeatedly that he should consult with a lawyer

I don't want him to take "advice", from me, (if you can call my opinion advice), but I see a lot of information/advice in this forum that is just plan incorrect....at least 2 or 3 times alone in the last few days where someone has hopped in and told an overstay married to a USC to leave the country.......

Fen seems pretty smart, he knows that an overstay is illegal and he knows that we keep on advising him to consult a lawyer.

As someone who works in a courthouse with a variety of judges, I'd like to just say that not all judges are like that (obviously! I'm sure you knew that) and that there are as many by the book judges as their are "rogue" judges.

Also, even these rogue judges have bad days, act like children, and can be moodier than a cat on crack. One day, one judge granted amnesty to a father who was $20K in arrears in child support because he didn't agree with the law that says an incarcerated father should be responsible for the accrewed arrears on the day of release; the next day, he threw a father in jail who was $2K in the hole for the same reason because the judge had just had a fight with the presiding judge and was in a pissy mood.

Also, judges may not like the law, may not agree with it, may not even choose to follow it sometimes, but if there's evidence that a person deliberately defied the law, that can and does change the judges' tune.

Just a word of warning from a reliable source -- myself and years of courtroom experience.

[Killer_Clown_2009 0]

I know and thank you.

it's just the irony of it all.

[Killer_Clown_2009 0]

I personally think fen should send his wife home, files his I-130 now and then apply to bring her back once he is a USC, but I also think he should get the correct answers to his initial questions too.

[meauxna 15]

meauxna:

the article i posted shows how these judges "circumvent" immigration laws, because they feel that they are stupid and punative, i felt that it related somewhat to this situation

the good authority I mentioned was an immigration lawyer

i've told fen repeatedly that he should consult with a lawyer

I don't want him to take "advice", from me, (if you can call my opinion advice), but I see a lot of information/advice in this forum that is just plan incorrect....at least 2 or 3 times alone in the last few days where someone has hopped in and told an overstay married to a USC to leave the country.......

Fen seems pretty smart, he knows that an overstay is illegal and he knows that we keep on advising him to consult a lawyer.

jane,

Thanks, I get it now.

On the incorrect advice, that's why it is important for us to be reading even the most banal questions--people, especially people waiting apart from their loved one, tend to misunderstand AOS from a non-immigrant option and incorrectly think it is illegal to get married in the Us without a K etc. Which you clearly know is not true.

But the spouse of an LPR is not equal to the spouse of a USC. And and LPR naturalizing is at a delicate moment, as I commented before.

The same information does not apply to the OP's case. There has never been a case like this posted at VJ or at the other group I use in the 5 or so years that I've been watching. No one has ever discussed their potentially illegal acts online for thousands+ to read. My paranoia has a foundation; I'll share sometime if you like, but it's not just mindless gibbering that leads some of us here to a more conservative approach.

I too think that the OP should get accurate answers to his initial questions. Let's review.

Questions:

1) can my wife stay illegally (after her B1 visa expires) in USA until I become USC and file AOS (GC) on her?

2) If USCIS denies her B1 visa extension, is there any other option for my wife to stay legally in the USA?

Thank you very much for your valuable opinions.

1-Yes, his wife CAN stay illegally after her (initial) B extension expires.

However, due to the TOS of this site, no one here should be advocating that. We are not the ones who will pay the consequesnces if our little encouragement goes wrong.

2-Yes, there are other options to stay in the US.

I've mentioned H1-B (limited and hard to get), there are J and other H visas for working, there is student status, but that will be difficult to get now that she's married to an LPR. There are perhaps several choices that might be appropriate, but this isn't the site to find them at.

http://britishexpats.com/forum/forumdisplay.php?f=34

http://britishexpats.com/forum/forumdisplay.php?f=31

Above are two very good, established Usenet groups with solid non-marriage based info.

It *is* easy to get distracted when replies jump to conclusions, or people don't understand some of the differences between visas petitioned by a USC and an LPR etc. It's too bad the conversation took an ugly turn. But there is really only ONE responsible answer in a thread like this, and it's been given: See A Lawyer. In Private! With counsel, the OP can tailor a strategy that fits THEIR facts and go on from there. There might be a VERY good reason you don't see a lot of these cases posted online. And the ones you find might have very different fact patterns.

I know it is tempting to throw in a contrary opinion when you see people posting nonsensical replies, just because common sense tells you (maybe me too ) that this is a non-issue. But we don't have all the info, we don't know the OP or his wife or their history and we can't *really* say 'hey, there won't be a problem'.

Thre are also other visa options for OP's wife to return, if she does leave.

moodier than a cat on crack.

Oh that is SO stolen!

How would you like to be credited?

Edited December 1, 2006 by meauxna

[FeniX 0]

I have nothing else to contribute other than to say

FeniX, if you get to come back, I ain't a dude.

Good luck to you!

We are back here Cheerz for all of you. Sorry for long absence. Came back to post some replies, hopefully helpful.

I have yet to see a 6 mo visitor visa be extended *twice* successfully.

Of course, I have yet to see a man eat his own head as well, but I understand David Blaine can do so!

So you just met

My wife successfully extended B1 visa twice so she was on tourist visa for a total time of 18 months and then she switched to a student F1 visa also with success

However after a year of that "visa gambling" I had an USC interview in September '07. Even though my wife was still legally in the US, the problem occurred somewhere else. Basically I was counting on medical exception (as told by an immigration adviser from New Jersey) that would cover my 6-week overstay (over one year) outside of the USA a 3 years ago. Well, I trusted wrong adviser though and in effect at the interview I was given only two options: either to go through the interview and become denied due to broken continuous residency requirement, or withdraw my application with no further consequences for me. I did the latter. As a result I will have to re-apply for citizenship in the end of 2008, ehhhh. One conclusion: definitely no exceptions on the requirement of continuous residency! If such exceptions ever existed they aren't respected anymore.

Also I was asked on interview about my wife, but really I think that it would not matter if she was legally or illegally staying in the USA. The only thing that may come up is that your good moral character may be questioned if you choose the second option. However as someone said, all depends on the person that has the power in their hands.

I have one advice for everyone, don't trust every paid information you hear. Unfortunately some people have a very bad manner of telling the biggest bullshit as the unquestionable truth. Also I talked to plenty of friends from New York & New Jersey area, and I learned also something funny about the lawyers. Some lawyers may get you deliberately into trouble, so then you would pay them to help you out, cruel huh? sad but true in some cases - that happened a few years ago to my good friend.

In summary, me and my wife are in the point in time when I haven't filed the USC application yet again I guess history likes to repeat itself hehe LOL. Now we are a little bit wiser than a year ago, and we will choose the optimal way towards successful USC & I-130.

1-Yes, his wife CAN stay illegally after her (initial) B extension expires.

However, due to the TOS of this site, no one here should be advocating that. We are not the ones who will pay the consequesnces if our little encouragement goes wrong.

2-Yes, there are other options to stay in the US.

I've mentioned H1-B (limited and hard to get), there are J and other H visas for working, there is student status, but that will be difficult to get now that she's married to an LPR. There are perhaps several choices that might be appropriate, but this isn't the site to find them at.

per 1

I agree completely

per 2

By the way, H1B visa is not an option anymore. Those visas are so hard to get you can consider that don't exist, nowadays all visas are gone after first week of April, not mentioning that first you need the sponsoring employer that would agree to file paperwork. As you can see getting student visa even if married to an LPR is not that difficult, all you need is good school and sponsor. The last choice is to go back to country of origin (hate that option so I don't even consider it). Of course there is also one option which-cannot-be-named here

Will keep you posted!

Warmest wishes.