Can my fiance/tourist overstay on adjustment of status?

[mikeknight 0]

Hello,

My fiance's is here on a tourist visa. We went through the tourist visa process and ran into nothing but harassment at the consulate. My fiance and I have a child together. She came here to the USA with my child in december but I have been slow in doing the adjustment of status paperwork. The original plan was to do a DNA test to show that the child belongs to my fiance and myself. This is what was requested by the officer at the consulate. Then when she got here with my child and we set up the test we were told that she cannot have the test done in the united states.

At that point we spoke to two immigration attorneys. They both said forget the DNA test. Just marry her and adjust her status. I haven't married her yet. I have downloaded the AOS forms and they look a bit daunting. It looks like they are asking for a ton of information and it will take a while to get all the materials together. What adds to the pressure is that she needs to return in early June so that she can keep her tourist visa in good status.

I am wondering what I should do at this point. If I marry her right away her last name will change. I don't know what kinds of immigration and other problems this will cause if she tries to go back to her home country with the different last name.

If I marry her before june and keep her here, will her adjustment of status not work because now she has overstayed her visa?

Should I just have her go back in June, stay for a month or two and have her come back in August? It seems like the easist route but I am worried about whether she will be able to get back in through customs to the USA and I don't want to be without my child anymore. I missed a year of him growing up because of the mistreatment my fiance and I received at the consulate. I don't want to be subjected to that again. Thank you for your information

[Killer_Clown_2009 0]

She won't be overstaying her visa if she has applied to adjust her status.

Edited May 12, 2007 by jane2005

[kitkat1 5]

She won't be overstaying her visa if she has applied to adjust her status.

Exactly.

And I can't imagine why a DNA test would be necessary. Where did you encounter problems at the consulate - for the tourist visa in her country or a different location for a different reason? Just trying to figure out why they recommended a DNA test.

Follow the guides for the AOS forms.

[athena_ny 1]

You should be aware that may need to prove there was no intent to immigrate (some people are asked for proof, others aren't).

Overstay is forgiven through marriage to a USC, but if you file the AOS, she won't have overstayed anyway.

[Dan J 277]

Your best bet is to get married now, then file for adjustment of status. When AOS is processing her status will be pending, and she will not be overstaying her other visa. She cannot leave the country and return until she either received her green card or received advanced parole. If she leaves the country, she many only be able to get back in with one of the K visas. Getting in a tourist visa will be harder since your now engaged.

You may have to prove that you did not have the intention to marry and stay when she last entered the country. Because entering on a tourist visa with the intention of getting married and filing AOS is fruad, and you may run into trouble if you cannot prove otherwise. But you can however stay file for AOS, if she entered on a tourist visa (or other non-immigrant visa except K visas) then after she was here, decided to get married she can do so and file for AOS.

As far as your child goes, assuming you are a citizen of the US, your child will be too. Did you report a birth abroad to the consulate?