Overstay a few months while I-130 pending?

[blk 87]

If you go a head & file for AOS he will have to stay in the US until it has been all sorted one way or another, also when you file & it's been exceptid he enters another period of othorised stay. If he leaves the US with out a AP or GC the USCIS will take it the the AOS has been abandoned

Edited February 16, 2014 by blk

[NikLR 13,232]

No you would be applying for his green card. That is the AOS I am talking about. He would be adjusting his status and staying in the USA until they said he was approved or denied the green card. Read up on it in the guides. You can send the AOS paperwork with the NOA1 of the I-130. He can also apply for advance parole and work authorization to allow him to leave and come back to the USA and work in the USA while waiting. If you choose to go this route, there is the AOS forum for your questions as well. Best of luck to you.

[Ryan H 3,834]

Moved from IR-1/CR-1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas forum.

[Nich-Nick 3,354]

You have a lot of scattered answers so read the guide to get a possible option

Step-by-Step Guide on How to File an I-130 for a Spouse Inside the US http://www.visajourney.com/content/i130guide2

Your spouse is currently inside the US and entered legally on VWP.

The forum for Adjustment of Status from VWP is here

Adjustment of Status from work, student, and tourist visas http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

Normally a spouse petition and the Adjustment of Status (greencard) forms are filed together for this method. Once the AOS is pending, the foreign spouse is in a new period of authorized stay while a decision is made on the matter. If successful, there will be no CR1 visa or processing at the consulate. The result of this method is a greencard. If this method is not successful, there is no appeal and he is outta here. As mentioned earlier, the foreign spouse has to meet the requirement of admissibility to the US. Drug use, crimes, infectious disease, prison record, being a Nazi, or prostitute, etc can make one inadmissable. Do your homework and study the possibility of this path. Get the paperwork spot on, and do NOT leave the US while you await a decision if you choose this path.

OR send him home before the overstay to complete the CR1 visa process you started. If you have documented reasons why you need an expedite on medical grounds, then there is a method to do that and formally submit your medical documentation. His being homeless does not warrant an expedite or overstay. No overstay is authorized by an expedite. It is to speed up the CR1 process only.

Expedite Criteria http://www.uscis.gov/forms/expedite-criteria

Edited February 16, 2014 by Nich-Nick

[ManCharsey 254]

In this circumstance the best thing to do is to file for the I-485 now and attach the receipt of the I-130 NOA with the application. This will be adjudicated as a concurrent filing of AOS. He wouldn't have to leave the US then.

[christeen 966]

I also suggest filing the 485 and Adjusting Status within the USA. He did not enter with the intent, and his circumstances back in his country and he would be without home or job, so AOS is a good fit for your situation... Read up n the guides for AOS

[sbai2000 31]

http://www.uscis.gov/sites/default/files/files/nativedocuments/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf

[sbai2000 31]

hello duskywolf - not sure how your husband was able to come to the US on VWP with marriage to a USC and a NOI1 already received. Either they did not ask him any questions or he was not honest with them about his immigrant intent. (which was already established with the NOA1). Either way he was very lucky!

Anyway, in my previous post I included a link showing the policy on how USCIS adjudicates adjustments under VWP. it should provide you with some encouragement. However, a pending I-130 and/or 1-485 does not offer him any visa protection once he is out of status - but after the 1-485 is approved all will be forgiven and he will be fine.

I'm not sure why you did not do a concurrent filing...but if there is a way you can include the I-485 with your current pending I-130 you should try to do so. I'm not sure what the process is for that or even if its possible, but if you are able to change your application into a concurrent application you should add the I-765, (Application for Employment Authorization - very important so he will get his work permit within 90 days while his application is pending) and don't forget to add the i864 form as well.

I would only do all these things and adjust in the US ONLY if I were sure that there would be no basis for the denial of the 1-485....i.e that you husband did not lie to the IO or there are not issues in his background that would be a problem.

if you are not sure that he did not lie, then you have to make a decision whether it is best to be safe and have your husband leave before his VWP expires. He should be able to find housing/work....what has be been doing all this time?!

Best of luck to you both.

[christeen 966]

There is no law saying you cannot enter the USA to visit while the I130 is pending... Especially from a VWP country... People do it all the time. Even if he was questioned, he did not have intent to stay and as long as immigration felt he was not a risk to adjust, he wold be free to enter. Again, there is nothing that says a person cannot visit the USA while immigration is pending...

[Hypnos 6,578]

However, a pending I-130 and/or 1-485 does not offer him any visa protection once he is out of status

You are mistaken; someone with a pending I-485 is considered to be in status. If filed by someone who is out of status then they are considered to be back in status once USCIS accept the I-485 for processing.

[Soul Froosh 31]

OP, you've received a lot of varied answers, links, rules & regulations etc.

Bottom line is: if you're husband is on US soil and you're married -- he can AOS and shouldn't leave at any stage during the AOS process.

Once you file he becomes a conditional resident. Any previous overstay should be waived, and his stay here after you've filed is legitimate.

I am curious about the part where you say he overstayed, went home, then came back again. I'm not sure how you managed that.

[Nich-Nick 3,354]

.

I am curious about the part where you say he overstayed, went home, then came back again. I'm not sure how you managed that.

She never stated he overstayed. He visited 90 days. He went home on Aug 5. He returned on his second 90 day visit which will end the 25th of this month. The mention of overstay in the title is a "What if" he doesn't leave on Feb. 25.

[Soul Froosh 31]

Right.

I misread OP's 2nd post as stayed for 4 months, went home and came back.

[ColGil 126]

I guess with extenuating circumstances (the fact you need your husband to care for you) would enable you to expedite the I-130, however that doesn't mean he can stay beyond the 90 VWP limit. I think the Adjustment of Status sounds the best option, but from what I understand you need to be clear that he was always planning on leaving prior to the 25th Feb, but the circumstances have change (you need care) so you should make this clear that he didn't arrive in the US with INTENT to stay, but instead came to visit and the circumstances dictate he now needs to stay.

He will also need to be careful about claiming he has no job, no place to live etc in his home country. When I travelled to the states on the VWP after the I-130 was filed I had to explain to secondary inspection at the airport that I still had a life back in the UK. Obviously if he's not leaving the states he's unlikely to be asked that, but it's better to be prepared, perhaps showing that he (and you) have finances so he was able to give up his p/t job to come out and visit you, and that he was to be staying with friends or family in his home country while he was awaiting for approval or denial.

[sbai2000 31]

You are mistaken; someone with a pending I-485 is considered to be in status. If filed by someone who is out of status then they are considered to be back in status once USCIS accept the I-485 for processing.

My understanding is that "status" (legal or illegal) is not a visa. What I said was that there was no visa protection with a pending I-130 and/or I-485. if you have overstayed, you are back in legal status at the completion of the I-485 - not a moment before. Is ICE going to bother you during a pending I-485? probably not....unless there is reason to...but I would still not sleep well at night until I-485 is approved and you are able to adjust.

....but I'm not an attorney - so what do I know!