Can my wife get a Spousal Visa after overstay (less than 180 days)

[luymel 1]

Hello,

 

So a bit about our situation. My wife is from Spain and entered on the Visa Waiver Program. At the time, we did not plan on getting married but as you know, things happen and we decided to tie the knot two days after her I-94 expired. We have recently applied to adjust her status here in the US but I messed up the application by sending a I-912, which I now know doesn't apply to us, so I know the application will be sent back. The problem is she needs to go back to Spain in May for a non-emergency situation (I heard the I-131's are taking a long time, over 100 days?). So, my question is, can we go back to Spain and simply apply for her green card in Spain at the consulate even though she's overstayed about a month? We like living in Spain much more than in the US anyway but we can make more money working here so we do want to live in the US at some point. I just don't want her to not be able to live and work here in the future. I know many of you will say why does she need to go back if it's not for an emergency but it's for a special event that means a lot to both of us.

 

Thanks for your help!

[Unlockable 7,315]

Here is the problem. Her VWP is gone forever. Once you overstay it, even by 1 day, it is gone. VWP is a huge privilege and those who break the rules of it lose it immediately with no hesitation. Because of that, your wife won't be able to use the VWP to reenter the US to visit you. However, she is free to apply for a B2 tourist visa. Yet, there is no guarantee she will receive that either.

 

So if you plan on applying for a spousal visa you can certainly proceed. The average time it takes is 12 - 14 months before she has her visa in hand. She will be allowed to work immediately after her arrival on the spousal visa.

 

The only issue is whether or not she will be able to get a visitor visa while the spousal visa is processing.

Edited January 19, 2018 by NuestraUnion

[Crazy Cat 42,032]

Yes, she can leave.  However, her VWP is now lost forever due to her overstay, and if she leaves prior to having an approved Advance Parole, her AOS status is considered abandoned.  She will have to remain outside the US until CR-1 processing completed and approved.  You will have to start the entire process over....

 

EDIT:  Technically, she could apply for a B2 visa for visits to the US during the CR-1 process, but I'd say the chances of her getting it are slim.

Edited January 19, 2018 by missileman

[Ryan H 3,819]

In addition to what has already been said, you will not be able to "apply for her green card in Spain at the consulate" because there is no USCIS field office in Spain.  You would have to send the applicable forms, documents, fees to a lockbox facility in the US where it would follow all the steps.  You could certainly wait out that time in Spain as long as you maintain your US domicile.