Overstayed, what should I do?

[anamono 0]

Hi!

I'm currently in the US, visiting my boyfriend on VWP, I'm from Belgium myself. We're in our early 20's. We're both in a STEM field, he's currently searching for a job.

I was planning on returning but my boyfriend was getting on-site interviews and my job back home fired me (new manager in my team while I was visiting my bf, didn't like I took a 3 month vacation, even though it was fine).

We've heard of adjustment of status being a thing before and we're aware of how the process works, so he suggested I stay instead because it'll be better for both of us anyway.

Which.. I did, woopsie poopsie.

I would've gone back if I could take him with me, however with me being fired I can't support the 2 of us. That was the original plan. Get to know each other better (our second time seeing each other IRL) and if it all works out, he's coming back with me while we wait for my US visa to process.

We're not the type of people to do long distance and the only reason we went into this is because at the time, we had the means to close the distance right away if it was a good match. Now, we don't have the means with him not having a job currently, so he's unable to sign a affidavit of support. Me going back would mean we'd break up, maybe it's too much to ask but we'd like to be together, if we can't there's not really much point of it to us.

 

Enough rambling though, change of heart, it happens.

 

I have a few questions now,

1. I get that we have to file immediately. We're not married yet. He doesn't have a job yet. Will I get deported before he gets a job? i.e. a month from now? (overstay for 2 days now)
2. Maybe a shot in the dark but is there any way for me to legally stay here without getting married to him, e.g. something like common law partnership? As far as I know that's common in most western countries.

 

Most importantly though, will I get deported? I'm really afraid, I don't want to mess anything up. Thanks so much in advance for helping me!

[britishandusa 446]

The only away for you to adjust status and forgive overstay is to marry him. To adjust status, he must also have income that makes 125% over the poverty guideline or he will need a co-sponsor to support you. Since you overstayed and are out of status, yes, you can be deported at any time. 

 

If you choose to leave, you will never get ESTA again and will have to apply for a tourist visa but your chances will be slim to none since you violated your ESTA.

Edited August 28, 2018 by britishandusa

[Crazy Cat 42,547]

1.  Whether married or not, you are technically subject to deportation once your I-94 authorized stay has expired.  Once you are married AND file for adjustment of status, you will gain "authorized stay" status.  If you, then, leave the US prior to getting an Advance Parole document, you will have abandoned that adjustment of status.  You can not work in the US until you have an Employment Authorization Document.  Both AP and EAD are filed concurrently with adjustment of status.  Processing time for EAD and AP is approx 5 months.

 

2.  No.  As I stated, even marrying a US citizen does not protect you from detention and deportation.  Only marriage AND filing for adjustment of status will give you "authorized stay" status.

[JFH 12,191]

In short, if you marry you can file AOS and stay. There is no such permission to stay if you are not married, only spouses are eligible. 

 

Your alternative is to go home, get a job and wait out the procedure. It won’t kill you. I get that you don’t want to be apart - that’s why we are all here on this forum. But if he does not have a job and you won’t be able to work for many months, it’s going to be miserable. I understand you no longer have a job at home but you have the legal right to a job there immediately - something you don’t have here in the USA and won’t have for a long time. I find it odd you think you can’t take him back with you because you don’t have a job but you want to stay here with him where neither of you has a job. How is healthcare in Belgium? What are you doing for healthcare here? How are you both supporting yourself?

 

You need to think with your head on this one, not your heart. It makes more sense to go home. Since your overstay is less than 180 days it won’t have any repercussions apart from not being able to use the VWP ever again. 

[mushroomspore 3,044]

Ok I'm going to be blunt.

 

Marriage alone does not grant you any legal status or permission to stay. But it is the first step for you and it's also really your only option at gaining legal status in the US. The US does not have common-law.

 

You can get married now and then file for adjustment of status. However, being that you are already out of status, you are at risk of deportation. When you file AoS and receive the receipt notices from USCIS acknowleding they have your application and are now processing it, you're put in "authorized stay". This does not grant you any actual legal status but it allows you to remain in the US until your case is adjudicated. In fact, you NEED to remain until your AoS is done or at least until you receive Advanced Parole (small but important detail).

 

Your other option is to get married now, leave the US and then file for a spousal visa. That takes a year or so to process and you'll be a green card holder upon arrival. You will have to disclose your overstay. Luckily, your OS is not over 180 days and OS is only forgiven for spouses of US citizens. No other immediate relative (parents and siblings) get this. However you cannot EVER use VWP again. You violated that the second you overstayed. This means, if you do a spousal visa, you cannot visit while it is pending. He will have to come visit you.

[Crazy Cat 42,547]

I agree with @JFH.  The adjustment of status process is not a piece cake according to posters here.  Many people have reported problems with Social Security, Driver's licenses, health care coverage, and more during the period of filing for adjustment of status and getting a Green Card.  After filing for AOS, you will not receive your Green Card for at least a year.........just food for thought.

[JFH 12,191]

The fact that OP is asking whether she can stay as a girlfriend or live-in partner without being married suggests to me that she doesn’t feel ready for marriage yet. And that’s understandable. They’ve only met twice. Marriage is a huge commitment and kudos to the OP for not taking it lightly. Although marriage means she can stay, it shouldn’t be used purely as a means to stay but only when both parties are completely ready. 

[FlashLG 152]

18 minutes ago, anamono said:

 

We're not the type of people to do long distance and the only reason we went into this is because at the time, we had the means to close the distance right away if it was a good match.

Based on your options, which others have outlined above, it looks like you may have to start being 'the type of people to do long distance' if you want your relationship to survive.

[mushroomspore 3,044]

Just now, JFH said:

The fact that OP is asking whether she can stay as a girlfriend or live-in partner without being married suggests to me that she doesn’t feel ready for marriage yet. And that’s understandable. They’ve only met twice. Marriage is a huge commitment and kudos to the OP for not taking it lightly. Although marriage means she can stay, it shouldn’t be used purely as a means to stay but only when both parties are completely ready. 

Agreed. 

 

@anamono Do not get married if you are not ready for MARRIAGE. Forget the immigration stuff for a moment and be honest about whether or not you are ready to MARRY the man you are with. That alone is a big decision. The immigration stuff adds a whole new dimension to it and it is not going to be fun and should not be taken lightly. Don't rush into marriage just for the immigration benefits. Many couples don't make it because of the stress the immigration procedure brings.

[Roel 7,193]

You're clearly not ready to get married.

 

No marriage = No AoS = No legal status.

 

So the only thing you can do is leave US - fast - before you acquire enough illegal presence to get a 3 year ban.

[Boiler 46,242]

Depends first if you are going to get married.

[wtrav 34]

14 hours ago, JFH said:

I find it odd you think you can’t take him back with you because you don’t have a job but you want to stay here with him where neither of you has a job. How is healthcare in Belgium? What are you doing for healthcare here? How are you both supporting yourself?

Exactly my thoughts!

 

It took my fiancé a couple of months to find a job and he has a degree and experience. It's definitely stressful not having one and trying to support 2 people.

 

How are you going to pay rent? Do you at least have savings you can rely on? Also the healthcare - it's extremely expensive if you need to use medical aid but have no insurance. 

 

My advice is to consider all of that before you make a decision.

[SusieQQQ 11,587]

14 hours ago, JFH said:

The fact that OP is asking whether she can stay as a girlfriend or live-in partner without being married suggests to me that she doesn’t feel ready for marriage yet. And that’s understandable. They’ve only met twice. Marriage is a huge commitment and kudos to the OP for not taking it lightly. Although marriage means she can stay, it shouldn’t be used purely as a means to stay but only when both parties are completely ready. 

 

As jfh and others have said this is an excellent point.

In this contexr I particularly found the following from the OP worrying - most people getting married wouldn’t say something like this, they would rather be finding long-term solutions even if the short term looks murky. Doesn’t sound like that it’s that strong to start with.

 

14 hours ago, anamono said:

 

Me going back would mean we'd break up,

 

The point about healthcare is also a good point - i know people in their 20s don’t think too much about it,but having an accident or something like appendicitis when you’re uninsured in the US can be massively expensive. 

 

Bit confused by those who suggest boyfriend move to Belgium, including OP’s musings on the subject - under what visa would he do that? Is there a common law partner visa for Belgium? And don’t these kind of visas usually have some kind of minimum time together or something to qualify?

Edited August 29, 2018 by SusieQQQ

[amdublin14 51]

Correct me if I'm wrong, but I thought adjustment of status only applied if the foreign national is in the US on a valid visa (not tourist, not VWP)? While OP didn't visit the US intending to marry, OP is technically without a visa, not a tourist, and discussing intent to immigrate--isn't that exactly what they flag in AOS cases? My husband visited me on a VWP and we decided to get married and start the process, and we understood from the start he was not eligible to adjust status (even met with an immigration lawyer who encouraged us to go the CR-1 route).

[Roel 7,193]

Just now, amdublin14 said:

Correct me if I'm wrong, but I thought adjustment of status only applied if the foreign national is in the US on a valid visa (not tourist, not VWP)? While OP didn't visit the US intending to marry, OP is technically without a visa, not a tourist, and discussing intent to immigrate--isn't that exactly what they flag in AOS cases? My husband visited me on a VWP and we decided to get married and start the process, and we understood from the start he was not eligible to adjust status (even met with an immigration lawyer who encouraged us to go the CR-1 route).

Well, spouse or fiance visa is THE right thing to do - Adjusting from tourist visa or VWP is frown upon by a lot of people, but (unfortunately) it's legal. It's legal when there was no prior plan to marry and adjust before POE. Though a lot of people lie about it anyway and then "change their minds" as soon as they leave the airport.

 

But anyway. It's not illegal.

 

And spouses of US citizens have their illegal presence forgiven.

 

Though in OPs case, I think they would benefit more if she left the US and they spend more time getting to know each other.