Is she in the US illegally?

[jademcculloch 123]

This is not me, I am asking for a friend, I know someone who got married in the US while being an au pair, she is now married, but her visa is expired, the couple told me their lawyer told them that as long as she doesn't leave the country, she is fine, but I am currently waiting for my petition to be approved outside of the country because I prefer the safer route, my question is: her J1 is expired and they have not yet filed for the I-130, realistically speaking, what could happen? Have you guys seen any success stories? How is this going to go down? When they told me, I was really alarmed, but I did not want to alarm them without doing research first 

[Lil bear 4,083]

Moved to Adjustment of Status from a work, tourist or student visa as this reflects the situation described by OP 

[payxibka 10,045]

7 minutes ago, jademcculloch said:

This is not me, I am asking for a friend, I know someone who got married in the US while being an au pair, she is now married, but her visa is expired, the couple told me their lawyer told them that as long as she doesn't leave the country, she is fine, but I am currently waiting for my petition to be approved outside of the country because I prefer the safer route, my question is: her J1 is expired and they have not yet filed for the I-130, realistically speaking, what could happen? Have you guys seen any success stories? How is this going to go down? When they told me, I was really alarmed, but I did not want to alarm them without doing research first 

Lawyer is correct 

[Nat&Amy 623]

If she has overstayed and therefore violated the terms of her visa, she has no status.

 

No status = deportable.

 

Her overstay will be forgiven during AoS but until she has NOA1 granting her authorized stay, her marriage to a USC gives her no benefits and she can still be detained if unable to provide papers when asked by authorities.

 

 

[jademcculloch 123]

Just now, Nat&Amy said:

If she has overstayed and therefore violated the terms of her visa, she has no status.

 

No status = deportable.

 

Her overstay will be forgiven during AoS but until she has NOA1 granting her authorized stay, her marriage to a USC gives her no benefits and she can still be detained if unable to provide papers when asked by authorities.

 

 

thanks for your answer, but will that be a problem further ahead during the immigration process?

[Nat&Amy 623]

26 minutes ago, payxibka said:

Lawyer is correct 

For clarification: lawyer has not given your friend the full picture*. She won't be "fine" until she files AoS - she is still deportable until then.

 

*Assuming, of course, OP has full access to what was discussed between friend and lawyer, which might not be the case.

4 minutes ago, jademcculloch said:

thanks for your answer, but will that be a problem further ahead during the immigration process?

Overstay is forgiven for spouses of USC.

 

Only foreseeable problem is her being caught by the authorities before AoS is properly filed. Has happened before. Absolutely no advantage in delaying AoS.

Edited January 16, 2020 by Nat&Amy

[jademcculloch 123]

Just now, Nat&Amy said:

For clarification: lawyer has not given your friend the full picture*. She won't be "fine" until she files AoS - she is still deportable until then.

 

*Assuming, of course, OP has full access to what was discussed between friend and lawyer, which might not be the case.

Overstay is forgiven for spouses of USC.

ok, that makes me feel better, thanks for the clarification 

[little immigrant 800]

1 hour ago, payxibka said:

Lawyer is correct 

The lawyer is correct by saying she's fine with an expired visa? 

[payxibka 10,045]

Just now, little immigrant said:

The lawyer is correct by saying she's fine with an expired visa? 

Meaning, as long as she stays in the USA she will be fine to file for adjustment of status.  Being out of status is not an impediment to eligibility or success 

[geowrian 22,337]

To clarify...

The overstay / violation of status means she is in the UIS illegally. Being married to a USC does not grant any legal status or authorized stay.

She is subject to deportation at this time. She is not "fine" - if caught, she will likely have a very unpleasant (and possibly expensive) experience.

 

Being married to a USC makes you exempt from the requirement of having and maintaining legal status to be eligible for AOS.

This means she can file for AOS and not have the overstay held against her for that purpose.

If/Once she files for AOS, she will be in a period of authorized stay.

[JFH 12,189]

We are, of course, assuming the au pair married a USC. If she married another visa holder or LPR then the overstay will not be forgiven and she cannot adjust status.

[jademcculloch 123]

3 minutes ago, JFH said:

We are, of course, assuming the au pair married a USC. If she married another visa holder or LPR then the overstay will not be forgiven and she cannot adjust status.

yes, she did

[Crazy Cat 41,288]

12 hours ago, jademcculloch said:

This is not me, I am asking for a friend, I know someone who got married in the US while being an au pair, she is now married, but her visa is expired, the couple told me their lawyer told them that as long as she doesn't leave the country, she is fine, but I am currently waiting for my petition to be approved outside of the country because I prefer the safer route, my question is: her J1 is expired and they have not yet filed for the I-130, realistically speaking, what could happen? Have you guys seen any success stories? How is this going to go down? When they told me, I was really alarmed, but I did not want to alarm them without doing research first 

Read this......she needs to file for adjustment of status to be granted authorized stay......otherwise, she could find herself in a real ugly situation...as did the OP of the following post:

 

 

[cosmonauts 125]

They should file for AOS as soon as possible! We sent our package a few weeks before my J1 expired to be on the safe side. As others have said, having an expired visa while married doesn't necessarily affect the AOS process but does leave her at risk.

[carmel34 3,576]

16 hours ago, jademcculloch said:

Have you guys seen any success stories?

Every day we see success stories with AOS in similar circumstances to your friend, and every day we see denials.  It all comes down to whether the evidence submitted with the AOS package, plus the interview, satisfies the officer that the marriage relationship is bona fide, and that the USC sponsor and/or co-sponsor has the financial resources to support their spouse.  Sometimes we see a greater level of scrutiny for cases where there was a long period of illegal status, so they need to file AOS immediately, but include a lot of supporting evidence and be ready for the interview by knowing everything about each other if the officer suspects something is amiss.  If they have been married and living together for a long time they should be able to provide strong documentation that the marriage is real, and the officer will be looking for that.  Good luck!

Edited January 16, 2020 by carmel34