I-485

[Femke 0]

Hello,

So far this site has been helping me out a lot with applying for my adjustment of status. Thanks to all.

Here is a short explanation of my situation:

This January I reentered for the third time in a row the USA on a B1 tourist visa (for a half year stay).

Had to go to the special room (wasn't fun) and customs told me I had to get married because next time they won't let me reenter. According to them I wasn't using my visa for the right reason (living here instead of traveling).

We decided to get married.

My B1 visa expired the 8 of July and we are going to get married the 21 st of July. We decided to let me overstay so my parents could make the wedding. According to a emigration lawyer we once saw this "crime" would be waved by getting married.

Now I am reading the instructions on I 485 and it says it is not appliable if your authorized stay expired before you filed this application. It comes back in Part 2 where it ask why am I applying. Should I mark H (other reason and say I got married while being here on a expired B 1 visa)?

I hope anyone can help me with this.

Thank you so much, Femke from the Netherlands

[Tom_Jim 40]

Despite the fact that you are currently illegal, this does not preclude you from seeking adjustment of status under INA 245(a) if you are the spouse of a US citizen. If you marry and the file for adjustment of status as the spouse of a United States citizen, you can also become a permanent resident without leaving the United States and the 3-year unlawful presence bar will never attach to you.

The only potential issue here may be your meeting in Room A (I believe that's what it's called in JFK) with an immigration officer, apparently advising you to get married (seems rather odd) because they will not allow you entry into the USA again the next time 'round.

Another thing that I wonder is, if USCIS will deem that your third subsequent entry on a visitor's visa and the relative close proximity of your visa expiring and your wedding day constitute intent to marry upon entering the USA with an inappropriate visa. Perhaps before you get married, it may be prudent that you and your husband-to-be seek the counsel of a capable immigration lawyer. The issue here is more of intent to marry, than a regular overstay.

***EDIT*** I can't imagine that the inspecting officer suggest that you get married on your visitor's visa. Did he clarify to you whether or not you should get a K-1 visa? Maybe he didn't elaborate and perhaps he meant to go about it on a K-1? There is that hole to fill in the story, I would guess.

Edited July 11, 2007 by latoslatos

[Nanusia & Lukaszek 0]

Despite the fact that you are currently illegal, this does not preclude you from seeking adjustment of status under INA 245(a) if you are the spouse of a US citizen. If you marry and the file for adjustment of status as the spouse of a United States citizen, you can also become a permanent resident without leaving the United States and the 3-year unlawful presence bar will never attach to you.

The only potential issue here may be your meeting in Room A (I believe that's what it's called in JFK) with an immigration officer, apparently advising you to get married (seems rather odd) because they will not allow you entry into the USA again the next time 'round.

Another thing that I wonder is, if USCIS will deem that your third subsequent entry on a visitor's visa and the relative close proximity of your visa expiring and your wedding day constitute intent to marry upon entering the USA with an inappropriate visa. Perhaps before you get married, it may be prudent that you and your husband-to-be seek the counsel of a capable immigration lawyer. The issue here is more of intent to marry, than a regular overstay.

***EDIT*** I can't imagine that the inspecting officer suggest that you get married on your visitor's visa. Did he clarify to you whether or not you should get a K-1 visa? Maybe he didn't elaborate and perhaps he meant to go about it on a K-1? There is that hole to fill in the story, I would guess.

The 3yr ban would not be implied in this situation. As long as they file AOS shortly after wedding, the overstay would be under 6 months and not qualify for a ban at all. The only issue is the entering with intent to marry perhaps.

I agree, seems very odd that the immigration officer would tell you to get married while on a tourist visa, when this is a rather no-no. Why would this even be suggested? Did you tell them you keep coming to see your SO?

[Tom_Jim 40]

The 3yr ban would not be implied in this situation

You are absolutely correct. Unless someone here has had a similar experience and could share their thoughts on the matter, I would certainly, if I were in your predicament, seek the opinion of a lawyer before your next steps; just to be sure.

[Femke 0]

Hello,

So far this site has been helping me out a lot with applying for my adjustment of status. Thanks to all.

Here is a short explanation of my situation:

This January I reentered for the third time in a row the USA on a B1 tourist visa (for a half year stay).

Had to go to the special room (wasn't fun) and customs told me I had to get married because next time they won't let me reenter. According to them I wasn't using my visa for the right reason (living here instead of traveling).

We decided to get married.

My B1 visa expired the 8 of July and we are going to get married the 21 st of July. We decided to let me overstay so my parents could make the wedding. According to a emigration lawyer we once saw this "crime" would be waved by getting married.

Now I am reading the instructions on I 485 and it says it is not appliable if your authorized stay expired before you filed this application. It comes back in Part 2 where it ask why am I applying. Should I mark H (other reason and say I got married while being here on a expired B 1 visa)?

I hope anyone can help me with this.

Thank you so much, Femke from the Netherlands

[Femke 0]

Thanks for the response.

I am marrying a US citizen and although it sounds odd, customs did advice me to get married. The officer from customs didn't see how, but he said " I will give you a change and let you into the country for the last time, but tell your boyfriend he better marries you. Afterwards we also spoke to a immigration attorney who advised us not to apply for a fiancee visa, because that would take a while and I had to leave the country, but instead to get married at the end of my visa stay. Towards the end so it wouldn't be considered as visa fraud becuase we didn't marry right away. We also have friends who did it this way and got approved. My only concern is that form that on page 3 of forma I 485 says I cannot file because I my visa expired. On part two I probably have to fill out H other. Do you have any suggestions what to say there?

Femke

[Yodrak 7]

Femke,

In Part 2 you mark 'a', because your adjustment will be based on the I-130 petition that your husband will have to submit for you.

Speak to that immigration attorney again about your authorized stay in the US (not your visa) expiring.

Yodrak

Thanks for the response.

I am marrying a US citizen and although it sounds odd, customs did advice me to get married. The officer from customs didn't see how, but he said " I will give you a change and let you into the country for the last time, but tell your boyfriend he better marries you. Afterwards we also spoke to a immigration attorney who advised us not to apply for a fiancee visa, because that would take a while and I had to leave the country, but instead to get married at the end of my visa stay. Towards the end so it wouldn't be considered as visa fraud becuase we didn't marry right away. We also have friends who did it this way and got approved. My only concern is that form that on page 3 of forma I 485 says I cannot file because I my visa expired. On part two I probably have to fill out H other. Do you have any suggestions what to say there?

Femke

[Dr_LHA 3]

In Part 2 you mark 'a', because your adjustment will be based on the I-130 petition that your husband will have to submit for you.

Note that the I-130 can be submitted at the same time as the AOS application, and does not need to be approved at the time.

[Nancy2015 2]

Thanks for the response.

I am marrying a US citizen and although it sounds odd, customs did advice me to get married. The officer from customs didn't see how, but he said " I will give you a change and let you into the country for the last time, but tell your boyfriend he better marries you. Afterwards we also spoke to a immigration attorney who advised us not to apply for a fiancee visa, because that would take a while and I had to leave the country, but instead to get married at the end of my visa stay. Towards the end so it wouldn't be considered as visa fraud becuase we didn't marry right away. We also have friends who did it this way and got approved. My only concern is that form that on page 3 of forma I 485 says I cannot file because I my visa expired. On part two I probably have to fill out H other. Do you have any suggestions what to say there?

Femke

You will mark A, because your spouse will be filing an I-130 - petition for an immediate relative concurrently with I-485, and this I-130 will make an immigrant visa number immediately available to you. I know it sounds odd, but despite the fact that you're in the country already, you need an immigrant visa number to be able to adjust status. So, it's A.

The attorney you spoke to seems kinda weird, but a lot of them are. Advising someone against getting a K-1 visa for the purpose of marriage doesn't sound right to me.

You can adjust status even though your visa has expired, because you're an immediate relative of a US citizen. On I-485, where it asks you about your status, you should put "Out of status". You'll be okay - overstay is forgiven to spouses of US citizenes.

EDIT: Femke, could you clarify what exactly expired - your visa or your I-94? because if your I-94 is still valid, you're not even out of status.

Edited July 11, 2007 by Jewel12

[Femke 0]

Hi Jewel, thanks for the advice. I decided to see my attorney tomorrow again. My visa is still valid but my I 94 expired.

Thanks for the response.

I am marrying a US citizen and although it sounds odd, customs did advice me to get married. The officer from customs didn't see how, but he said " I will give you a change and let you into the country for the last time, but tell your boyfriend he better marries you. Afterwards we also spoke to a immigration attorney who advised us not to apply for a fiancee visa, because that would take a while and I had to leave the country, but instead to get married at the end of my visa stay. Towards the end so it wouldn't be considered as visa fraud becuase we didn't marry right away. We also have friends who did it this way and got approved. My only concern is that form that on page 3 of forma I 485 says I cannot file because I my visa expired. On part two I probably have to fill out H other. Do you have any suggestions what to say there?

Femke

You will mark A, because your spouse will be filing an I-130 - petition for an immediate relative concurrently with I-485, and this I-130 will make an immigrant visa number immediately available to you. I know it sounds odd, but despite the fact that you're in the country already, you need an immigrant visa number to be able to adjust status. So, it's A.

The attorney you spoke to seems kinda weird, but a lot of them are. Advising someone against getting a K-1 visa for the purpose of marriage doesn't sound right to me.

You can adjust status even though your visa has expired, because you're an immediate relative of a US citizen. On I-485, where it asks you about your status, you should put "Out of status". You'll be okay - overstay is forgiven to spouses of US citizenes.

EDIT: Femke, could you clarify what exactly expired - your visa or your I-94? because if your I-94 is still valid, you're not even out of status.