Undocumented I-130 here on C-1

[alindallas 1]

My wife and I did everything legal, she is from Peru. I am asking for my sister-in-law. She is here undocumented on a C-1 visa that expired about 5 years ago. She is married to US citizen and they have a child together. Now she wants to apply for her green card and eventual citizenship. What are her chances of success and of getting a 3/1 year ban ? ....also if she has a change to get a green card, what documents does she need ?

[Ben&Zian 4,398]

If she came here legally through another visa, married a USC, the USC can file for her AOS. The overstay will be forgotten/forgiven.

[alindallas 1]

I thought that this is true for most visas but not the C-1...because it was to work on a cruise ship and not the usual work visa.

[Chardon Ne' 71]

Any Visa when married to USC spouse. As long as she entered the country legally through a point of entry with a stamp. The only ppl who have issue are DACA and illegal border crossers because they have to apply for AP leave then reenter the US legally probably get a ban then have to apply for a waiver etc. Doesnt make it impossible but a bit much for some. 

Edited January 27, 2017 by Chardon Ne'

[alindallas 1]

Are you sure about this ?  I have read that the rules regards the C-1 visas are much different that every other visa. 

[Chardon Ne' 71]

Seems like there are some legal issues with that visa type that are no different than the previous cases I mentioned IE DACA. Yeah it seems as though they would have to apply for AP and reenter legally as well as that is a designated crew man visa. There is something called provisional waiver program I would look into that 

 

https://www.uscis.gov/family/family-us-citizens/provisional-waiver/provisional-unlawful-presence-waivers

Edited January 27, 2017 by Chardon Ne'

[Ben&Zian 4,398]

10 minutes ago, alindallas said:

Are you sure about this ?  I have read that the rules regards the C-1 visas are much different that every other visa. 

 

 

You make a very good point. Here's a link with some more info.

 

http://www.wilneroreilly.com/News/Dispelling-Mystery-Regarding-C-Visas.shtml

 

Also this link even: http://asl-lawfirm.com/blog/unable-to-adjust-status-on-a-c1-d-crew-visa/

 

So far from what I am reading and still reading on other sites, it does appear she would be deported/have to leave and get a ban from the US for overstay.

 

If this truely is the case, she would then have to have the USC file for a CR-1 visa for her. She would be denied naturally because of the ban; but then they would have to file for a waiver and hope it owuld be approved.

 

This probably is not a DYI case. She may want to seek legal assistance to figure out exactly what she needs to do or can do even.

Edited January 27, 2017 by Ben&Zian

[alindallas 1]

Thank you Ben or Zian or both. That is what I thought....I am pretty good at these but, I think this is above my pay grade. I was hoping that what I read was wrong. Thanks again

[kzielu 1,149]

C visa does not allow AOS - simple as that. It's explicitly stated in its rules. Agree will have to leave the country, apply for consular processing and later a waiver.

[Hypnos 6,578]

1 hour ago, Ben&Zian said:

The overstay will be forgotten/forgiven.

This is a common misconception. The overstay, and any associated bars someone incurs from them, never go away, they just aren't enforced for LPRs. This can give rise to a situation where someone has a ten year bar for overstay, for example, but successfully adjusts status. Five years later they decide to move back to their home country. They are no longer an LPR so the bar is now back in play, and runs for ten years from the date they first departed the US after the overstay occurred. If they had never departed the US after becoming an LPR then surprise, ten year bar.

 

INA Section 212(a)(9)(B):

 

"(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

 

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States, is inadmissible.

 

1 hour ago, Chardon Ne' said:

Any Visa when married to USC spouse.

From the I-485 instructions, Page 2, "Who Is Not Eligible To Adjust Status?":

 

"2. You entered the United States as a nonimmigrant crewman".

 

Nonimmigrant crewmen typically enter on C-1/D visas.

Edited January 27, 2017 by Hypnos

[mallafri76 1,012]

I don't understand why people risk their future and overstay.... The k-1 is like six months and then you're legally here and will have no future issues or these concerns hanging over you....

[ConOfficer 167]

She has to file an I-130 and concurrently apply for I-601A provisional waiver of unlawful presence. When the waiver is approved she can go back to Peru for consular processing. 

[f f 725]

it looks like you need to file i485 supplement form with your petition.

 

https://www.uscis.gov/i-485supa

 

it specifically states in the instructions if you were admitted on a c-1 visa you can file this form with your petition. it is usually waved for spouses of usc except for those admitted as c-1 and s visas. there is a $1000 fine with it though but it will enable your wife to adjust if you concurrently file and she is in the us when you file.

 

it specifically says this form is for alien crewman who entered the us.

Edited January 28, 2017 by f f

[alindallas 1]

Did you read the I-485 and the section 245 that it pertains to....please don't give info that does not apply. The section 245 specifically states the timeline for" A person who had a properly filed and approvable when filed labor certification or visa petition filed on their behalf after January 14, 1998, but on or before April 30, 2001,qualifies for the benefits of §245(i) but only if they were physically present in the U.S. on the date of enactment of the new law (December 21, 2000)."

[sparkles_ 456]

You may want to ask this on immigrate2us also, they have a lot of complicated cases over there and good advice about waivers