Overstayed, what should I do?

[Boiler 46,242]

3 minutes ago, 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).

You are wrong, hence the comments above.

[amdublin14 51]

22 minutes ago, Roel said:

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.

I didn't mention illegality, just questioning the process and difficulty of proving/disproving intent, which is a very delicate thing to hinge the application on... But to each his own.

[JFH 12,191]

2 minutes ago, amdublin14 said:

I didn't mention illegality, just questioning the process and difficulty of proving/disproving intent, which is a very delicate thing to hinge the application on... But to each his own.

Intent is determined at POE. If CBP let you in, they are satisfied you have no immigration intent. Otherwise they would turn you away. Also, immigration intent alone is not enough to deny AOS for a spouse - Google "matter of Battista" for further details.

[Crazy Cat 42,547]

8 minutes ago, JFH said:

Intent is determined at POE. If CBP let you in, they are satisfied you have no immigration intent. Otherwise they would turn you away. Also, immigration intent alone is not enough to deny AOS for a spouse - Google "matter of Battista" for further details.

Some attorneys say this:

"An I-485 application for permanent residency is considered an application for admission to the U.S. This is a counter-intuitive concept that many struggle with. Even though the applicant is already in the country, U.S. Citizenship and Immigration Services (USCIS) treats the person as though they are outside the U.S. and seeking entry. Why does that matter? Because the person is screened for all grounds of inadmissibility."

interesting subject which always stirs up debate here...lol

[mushroomspore 3,044]

24 minutes ago, 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).

Tourist visas are valid visas. Student and work visa holders do also engage in fraudulent marriages and experience the same level of scrutiny from USCIS. One could even argue that they have more motivation to do so since student and most work visas are not dual intent but they've lived here and may find it harder to leave upon visa expiry.

[JFH 12,191]

2 minutes ago, missileman said:

 

interesting subject which always stirs up debate here...lol

AOS from tourist visas/VWP always stirs up debate here and elsewhere. I know what my thoughts are on it so I try to avoid wading in too deeply when the discussion turns to "immigration intent". 

[Crazy Cat 42,547]

Just now, JFH said:

AOS from tourist visas/VWP always stirs up debate here and elsewhere. I know what my thoughts are on it so I try to avoid wading in too deeply when the discussion turns to "immigration intent". 

Agree...and likewise.....☺️

[CheeseMonstah 87]

Others provided good immigration advice, let me provide you a life advice:

 

Marriage is a long, long, long term commitment (in most cases). Marrying someone is one of the most important decisions in your life, and you need to be sure that's what (both of) you want. Ending a marriage is not easy or cheap. Immigration itself is not a reason to get married.

 

If you say moving back to Belgium would mean the end of the relationship, it sounds to me you don't have a solid enough foundation. I was engaged to my (now) wife while I was working in Romania. It sucked, but it was the best thing for both of us. Many here stay engaged or even married for > 1 year while living apart waiting for the visa to clear. It's not fun or easy, but we/they do because they have a solid foundation to their relationship, and can endure the wait and the separation. If you know staying apart would mean the end of your relationship.... I think it's time to go home, move on.

 

Best of luck!

[A&H2018 148]

Orginial plan was for him to leave the USA and go jobless for a year in Europe? Not even sure I get that concept to begin with.

[SusieQQQ 11,587]

1 hour ago, 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)? 

Usually yes, but (as with so much else in immigration law) the provision has an exception for immediate relatives. https://www.uscis.gov/sites/default/files/files/nativedocuments/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf

note this memo though does highlight a VWP overstay can be removed even after filing for IR AOS, at the discretion of DHS (see middle of page 2) though I’m guessing in practice this seldom happens.

Edited August 29, 2018 by SusieQQQ

[JFH 12,191]

6 minutes ago, A&H2018 said:

Orginial plan was for him to leave the USA and go jobless for a year in Europe? Not even sure I get that concept to begin with.

Better than the current plan which is for both of them to be jobless here (and pay hefty AOS fees). At least in Europe OP can start work immediately and requires no visa or permit to work in any EU country. That gives them 22 countries where she can look for work. If she stays here, she can't work anywhere for many months. 

Edited August 29, 2018 by JFH

[EM_Vandaveer 2,417]

1 hour ago, 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).

You're wrong. Source: adjusted from VWP in 2011, I became a USC since.

[EM_Vandaveer 2,417]

42 minutes ago, missileman said:

Some attorneys say this:

"An I-485 application for permanent residency is considered an application for admission to the U.S. This is a counter-intuitive concept that many struggle with. Even though the applicant is already in the country, U.S. Citizenship and Immigration Services (USCIS) treats the person as though they are outside the U.S. and seeking entry. Why does that matter? Because the person is screened for all grounds of inadmissibility."

interesting subject which always stirs up debate here...lol

Great, but overstay is not relevant for spouses of USCs.

[Crazy Cat 42,547]

2 minutes ago, EM_Vandaveer said:

Great, but overstay is not relevant for spouses of USCs.

I wasn't referring to overstay.....

 

 

[EM_Vandaveer 2,417]

1 minute ago, missileman said:

I wasn't referring to overstay.....

 

 

What were you referring to? Not a problem for a spouse of USC to adjust status, even after overstay. As the person hasn't left yet, they did not occur a ban. Unless they have a criminal record, I don't see a problem (unless of course they're unwilling to get married).