Is my spouse here legally?

[Penguin_ie 5,997]

****  moving from CR-1 spousal visa to AOS from tourist visa forum ******

[KeratNY 76]

1 hour ago, nj5b said:

My wife's visa expires in two days.  I sent the paperwork and it was delivered last friday via UPS tracking.  I do understand that when the paperwork is being processed she is legal.  My concern is does the check have to be cashed by then or just received?  This scenario just played out in my mind that she might be illegal if they haven't processed my check by the time her visa expires and I may have to send her home so she doesn't violate any laws.  Couldn't find anything concrete on these specifics and decided to seek an answer from the residential experts here.

 

Thank you in advance.

While the AoS is pending, your wife is in a stay authorized by the Attorney General. She is not unlawfully present. If there is a couple day gap between when her I-94 expires and the date of the NOA, it does not matter at all, because any overstay is forgiven by marriage to a US Citizen. She should absolutely not leave the country until she receives her Advance Parole, which comes 3-5 months after they receive your application (took me 4 months). 

[KeratNY 76]

37 minutes ago, NuestraUnion said:

If you file for a spousal visa, she could use her B2 to visit during the process. 

No. If one were to file for a spousal visa, the chance of her getting a B2 Visa is virtually zero. A spousal visa shows immigrant intent and a tourist visa is specifically for non-immigrant intent. 

[Cyberfx1024 7,980]

6 minutes ago, nj5b said:

I would be rolling the dice on our future to let her stay not knowing for sure that she is here legally and then jeapordize any chance of a future together.

 

Sincerely I thank you for the positivity but there's alot riding on this.

Ok, I understand there is a lot riding on this for y'all. But if you didn't want her to be out of status for a few weeks then you should have filed sooner or sent her home before now. But she will be out of status for a few weeks if she doesn't go back and then you will have to file for CR-1 visa and wait 12-14 months then.

[nj5b 2]

9 minutes ago, cyberfx1024 said:

Ok, I understand there is a lot riding on this for y'all. But if you didn't want her to be out of status for a few weeks then you should have filed sooner or sent her home before now. But she will be out of status for a few weeks if she doesn't go back and then you will have to file for CR-1 visa and wait 12-14 months then.

In hindsight, you are 100% correct in that I should've filed sooner. As mentioned in the original post I thought the arrival of the petition was what mattered and this possibility just entered my mind this morning. In any case I do appreciate your feedback. Thank you.

[KeratNY 76]

10 minutes ago, cyberfx1024 said:

Ok, I understand there is a lot riding on this for y'all. But if you didn't want her to be out of status for a few weeks then you should have filed sooner or sent her home before now. But she will be out of status for a few weeks if she doesn't go back and then you will have to file for CR-1 visa and wait 12-14 months then.

Overstays are forgiven when applying for AoS due to marriage to a US citizen, as long as she doesn't leave the country and trigger the entry ban. She can travel after she receives advance parole

Even if one were to be out of status for a few weeks, there is no way she can be deported during this time. It takes time to deport someone and they will receive NOA in the meantime. So removal proceedings would never even begin in this case

[nj5b 2]

17 minutes ago, KeratNY said:

While the AoS is pending, your wife is in a stay authorized by the Attorney General. She is not unlawfully present. If there is a couple day gap between when her I-94 expires and the date of the NOA, it does not matter at all, because any overstay is forgiven by marriage to a US Citizen. She should absolutely not leave the country until she receives her Advance Parole, which comes 3-5 months after they receive your application (took me 4 months). 

You mentioned that any overstay is forgiven by marriage to a us citizen. Do you have any online source to verify that claim?  I also thank you for your insight on the matter KeratNY.  

[Cyberfx1024 7,980]

4 minutes ago, nj5b said:

You mentioned that any overstay is forgiven by marriage to a us citizen. Do you have any online source to verify that claim?  I also thank you for your insight on the matter KeratNY.  

That's what we have been trying to tell you but you won't listen to us.

[Cyberfx1024 7,980]

7 minutes ago, KeratNY said:

Overstays are forgiven when applying for AoS due to marriage to a US citizen, as long as she doesn't leave the country and trigger the entry ban. She can travel after she receives advance parole

Even if one were to be out of status for a few weeks, there is no way she can be deported during this time. It takes time to deport someone and they will receive NOA in the meantime. So removal proceedings would never even begin in this case

This isn't my first rodeo and if you look back to my original post in this thread you would see exactly what you just wrote down so thank you for repeating me.

[KeratNY 76]

Just now, nj5b said:

You mentioned that any overstay is forgiven by marriage to a us citizen. Do you have any online source to verify that claim?  I also thank you for your insight on the matter KeratNY.  

This is one of the very basic and entrenched facts about AoS through spouse. Do not worry, it is exceptionally common. Overstays of 10+ years routinely get permanent residency, it is never a bar to that (except for certain visas such as crewman, J1s/J2s that are subject to 212(e), fiancee visas when the fiancee marries a different US Citizen than the original petitioner etc). 
https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter8.html

 

Certain adjustment bars do not apply to an immediate relative, including the spouse or child (unmarried and under 21 years old) of a U.S. citizen, and the parent of a U.S. citizen older than 21. ^[2] 

 

An adjustment applicant applying as an immediate relative may be eligible to adjust status even if: 

 

•The applicant is now employed or has ever been employed in the United States without authorization; 

 

•The applicant is not in lawful immigration status on the date he or she files the adjustment application; 

 

•The applicant has ever failed to continuously maintain a lawful status since entry into the United States; 

 

•The applicant was last admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) as a visitor under the Guam or CNMI Visa Waiver Program and is not a Canadian citizen; 

 

•The applicant was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program; or 

 

•The applicant has ever violated the terms of his or her nonimmigrant status. 

[Cyberfx1024 7,980]

22 minutes ago, KeratNY said:

No. If one were to file for a spousal visa, the chance of her getting a B2 Visa is virtually zero. A spousal visa shows immigrant intent and a tourist visa is specifically for non-immigrant intent. 

Please read the OP's previous threads on this. The OP's wife has a 10 year B2 visa already approved and that is how she is here in the USA.

[Cyberfx1024 7,980]

7 minutes ago, nj5b said:

You mentioned that any overstay is forgiven by marriage to a us citizen. Do you have any online source to verify that claim?  I also thank you for your insight on the matter KeratNY.  

That's what I tried to tell you earlier is that you will have the NOA1 within the next couple of weeks since you filed already. So don't make any extravagant travel plans until she gets the NOA1 nationally and the AP/GC internationally.

[KeratNY 76]

3 minutes ago, cyberfx1024 said:

This isn't my first rodeo and if you look back to my original post in this thread you would see exactly what you just wrote down so thank you for repeating me.

You wrote "But she will be out of status for a few weeks if she doesn't go back and then you will have to file for CR-1 visa and wait 12-14 months then."

 

This is misleading. Out of status for a few weeks doesn't matter. She should not leave. The CR-1 visa is not relevant here. 

[KeratNY 76]

2 minutes ago, cyberfx1024 said:

Please read the OP's previous threads on this. The OP's wife has a 10 year B2 visa already approved and that is how she is here in the USA.

That doesn't matter. Once the beneficiary is outside the US and the spousal visa is applied for, the B2 will be automatically canceled, and the chance of getting another one is virtually zero (actually it is supposed to be zero but someone could make a mistake). This is a very basic fact that you cannot get a non-immigrant visa while an immigrant application is pending. Visas do not automatically guarantee entry, and if something meaningful changes, that visa is subject to being cancelled. This is what would happen here. 

[Cyberfx1024 7,980]

1 minute ago, KeratNY said:

You wrote "But she will be out of status for a few weeks if she doesn't go back and then you will have to file for CR-1 visa and wait 12-14 months then."

This is misleading. Out of status for a few weeks doesn't matter. She should not leave. The CR-1 visa is not relevant here. 

Actually if you look back to my ORIGINAL POST on this thread you would see that I wrote: Why would she go home now? You guys are doing the AOS process now and you have to wait until the NOA1 which will be with in 2-3 weeks for her to be here with any kind of status that is not immediately deportable. She can not leave the country now until she gets the GC or the Advance Parole if you filed for it.

 

The CR-1 IS RELEVANT IF OP'S WIFE LEAVES THE COUNTRY NOW.