Getting EAD approved while out of status

[Mandysbaby 0]

Hi - I have a question regarding getting a EAD even though out of status. My husband became out of status shortly after we got married Feb of this year. We are currently completeing I-485/I-130/I-765 and whatever other forms needed with those. We hope to have it all mailed before the end of this month. My husband came over as a visitor on the visa waiver program. No K-1 visa or anything like that. Does anyone know if the fact that he is out of status at time of filing, will that effect him recieving a work permit?? TIA!

[Rings 10]

he is not here on a current visa at all?

[Mandysbaby 0]

No he is not. He came over on the visa waiver program in December 06. We decided to get married on Feb 2nd 07, before his I-94 expired. I-94 expired end of Feb. I had called the 800 for USCIS *before* we got married. I explained the situation of how we had planned to marry even though he was only on a visitor visa (even though they said tech he wasn't on any visa b/c it was the waiver program). I was advised from the rep that as long as we were married before his I-94 expired AND had all the paperwork filed with them within the first year, he would be allowed to stay within the US awaiting his approval/denial. She told us to file said forms (EAD optional if he wanted to work or not while waiting). It was never mentioned if he had to be in current status but I assumed not since she knew he was going to be out of status before we even filed. So now I'm lost. I've since read on immigration boards that there may be a problem with him recieving a work permit since he's now out of status. I sure hope not but something tells me it's true.

[Dr_LHA 3]

His overstay will have no affect at all. If everything goes well he'll get his EAD around 90 days after USCIS receive the application for it and AOS.

Overstay on visa is "forgiven" if the person is married to a US citizen.

BTW - the person on the hotline was wrong. You didn't have to get married before the I-94 expired (that's only true for a K-1 visa) and you don't have to file paperwork within one year, he could stay here for 10 years illegally and still be able to get a Green Card. The only time limit is that he should not attempt to leave the USA if his overstay is over 180 days, because that will trigger a ban.

Note that clock will stop on his overstay as soon as USCIS receives the AOS application.

Edited June 15, 2007 by Dr_LHA

[MargotDarko 0]

So when he entered you had no intention to marry? You may need to prove that at some point in the process. If he quit a job at home, packed up all his stuff, and ended a lease or got rid of a house before coming on the visa wavier programme, that will look a bit fishy. It might not come up, but if it does come up and you're not prepared, it can be a very very big problem.

[Kez/JWolf 6]

So when he entered you had no intention to marry? You may need to prove that at some point in the process. If he quit a job at home, packed up all his stuff, and ended a lease or got rid of a house before coming on the visa wavier programme, that will look a bit fishy. It might not come up, but if it does come up and you're not prepared, it can be a very very big problem.

The OP has already said that he arrived in Dec 06 and they decided to get married in the Feb 07 so it would be unlikely that the OP had planned it all beforehand.....

Kez

[John & Annie 0]

Him being "out of status" has no relative bearing on this, as Dr LHA explained, this will be forgiven.

As far as obtaining the EAD, he will not requesting that as an "overstay" he will be requesting it as a "pending adjustment" applicant, therefore you should have no worries.

Read the guides on applying, there is a lot of good advice that will probably answer all of your questions and concerns.

By all means ask questions, do research and enjoy being married to Scot, I love my Celtic Bride.

BTW, if your unsure about asking something, us the PM feature and ask a moderator or one of the level headed people on the site.

[Kez/JWolf 6]

I too did AOS from a VWP and have had my greencard since Nov 2005 if you have any questions please feel free to ask me...

Kez

[Mandysbaby 0]

So when he entered you had no intention to marry? You may need to prove that at some point in the process. If he quit a job at home, packed up all his stuff, and ended a lease or got rid of a house before coming on the visa wavier programme, that will look a bit fishy. It might not come up, but if it does come up and you're not prepared, it can be a very very big problem.

No intentions to marry when he came over. His things (besides clothing and such he brought over for the visit) are still back home at his parents, where he was living. He did quit a job about a month before coming over and was looking for work with more hours as he was only getting 4 hours a week at work. Not that I need to air my bizz but to further explain why we married on his visit, is because I became pregnant. We thought it better for him to just stay here and not risk missing out on the birth of the baby and be here as a family. I already have a 2.5 year old son from a previous relationship and without my husbands help, I don't know how I would have managed this pregnancy. Believe me I would have loved to wait and save for a big wedding but things happened and we did what we thought was right.

[Kez/JWolf 6]

Please dont feel that you need to explain anything on here..... you know yourself if you had plans to marry and as you have already said you did not at that time..... there are many of us who have got married on a VWP and have had no problems getting our greencards.... if fact most of were not even asked about our entry into the US at the AOS interview... Please try not to worry you dont need to be worrying when you are pregnant...

Kez

[Mandysbaby 0]

I know I shouldn't be worrying while pregnant. My husband keeps telling me to stop fretting over the "what ifs" and just focus on getting the paperwork sent in and preparing for our child. Easier said then done that's for sure. As far as explaining myself, that's just me in general. Thank you for your help. I do feel much more reassured. I definatly needed it!

[MargotDarko 0]

So when he entered you had no intention to marry? You may need to prove that at some point in the process. If he quit a job at home, packed up all his stuff, and ended a lease or got rid of a house before coming on the visa wavier programme, that will look a bit fishy. It might not come up, but if it does come up and you're not prepared, it can be a very very big problem.

No intentions to marry when he came over. His things (besides clothing and such he brought over for the visit) are still back home at his parents, where he was living. He did quit a job about a month before coming over and was looking for work with more hours as he was only getting 4 hours a week at work. Not that I need to air my bizz but to further explain why we married on his visit, is because I became pregnant. We thought it better for him to just stay here and not risk missing out on the birth of the baby and be here as a family. I already have a 2.5 year old son from a previous relationship and without my husbands help, I don't know how I would have managed this pregnancy. Believe me I would have loved to wait and save for a big wedding but things happened and we did what we thought was right.

I'm sorry it sounded like I was asking you to explain. Even though it might not ever be raised as an issue, I just wanted to say that it's something to be prepared to answer.

I like the phrase "air my bizz".

[3Elfe 0]

My story is similar.... I came in LA in november 06, my visa waiver expired at 02/07 and I getting married on feb 5, no problem..... I received my EAD yesterday.... and my AOS is still pending....

GOOD LUCK !!!!