B2 Overstay

[Worldtraveler222 0]

Hi! My husband came on a B2 visa. It expires in April and while we are trying to get everything filed before his stay expires in April we are having difficulty with getting his birth certificate so it might take longer than we hoped. My question is after his stay expires can we still file the AOS? If so, is he no longer subject to being deported once the application is received or since it was after his overstay will he be at risk until it is approved or denied? I am a US Citizen by birth. Thank you in advance! 

[Ontarkie 14,707]

~~Moved to AOS from Work, Student and Tourist Visas- from AOS Family K1/K3- as the OP 's spouse entered as a tourist/B2.~~

[NorthByNorthwest 415]

  On 3/18/2024 at 2:37 AM, Worldtraveler222 said:

Hi! My husband came on a B2 visa. It expires in April and while we are trying to get everything filed before his stay expires in April we are having difficulty with getting his birth certificate so it might take longer than we hoped. My question is after his stay expires can we still file the AOS? If so, is he no longer subject to being deported once the application is received or since it was after his overstay will he be at risk until it is approved or denied? I am a US Citizen by birth. Thank you in advance! 

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While his I-94 is unexpired he has lawful status. The second the I-94 expires he moves to unlawful presence and is deportable, but once you file I-485 (in your case it would be concurrent filing of I-130 and I-485) and the filing has been accepted by USCIS he moves to being in a period of authorized stay and unlawful presence is no longer accrued. The I-797 is his proof of authorized stay at that point. Since he's in an immigration gray zone at that point he needs Advance Parole to be able to leave and reenter the US at that point until AOS is approved.

 

Note that you will face questions at the interview about adjusting from B2 since it is illegal to enter on B2 with the intention to AOS.

[Worldtraveler222 0]

  On 3/18/2024 at 3:10 AM, NorthByNorthwest said:

 

While his I-94 is unexpired he has lawful status. The second the I-94 expires he moves to unlawful presence and is deportable, but once you file I-485 (in your case it would be concurrent filing of I-130 and I-485) and the filing has been accepted by USCIS he moves to being in a period of authorized stay and unlawful presence is no longer accrued. The I-797 is his proof of authorized stay at that point. Since he's in an immigration gray zone at that point he needs Advance Parole to be able to leave and reenter the US at that point until AOS is approved.

 

Note that you will face questions at the interview about adjusting from B2 since it is illegal to enter on B2 with the intention to AOS.

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Thank you so much! 

[EmilyW 1,547]

Intention was determined at POE, so no issue with him entering and 'changing his mind' after the fact.

[mytruelove18 608]

  On 3/18/2024 at 2:37 AM, Worldtraveler222 said:

Hi! My husband came on a B2 visa. It expires in April and while we are trying to get everything filed before his stay expires in April we are having difficulty with getting his birth certificate so it might take longer than we hoped. My question is after his stay expires can we still file the AOS? If so, is he no longer subject to being deported once the application is received or since it was after his overstay will he be at risk until it is approved or denied? I am a US Citizen by birth. Thank you in advance! 

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Why is his birth certificate take that long? , it is easy to get and you get it same day at the Oficialia in DR. all you need is a pdf form and print , you dont need original to send with the i-485. Some family member can get the birth certificate and scan and send it to you by email or whassapp

[Lemonslice 5,064]

You'll also save a lot of money by filling before the fees increase.

[Worldtraveler222 0]

  On 3/18/2024 at 5:20 PM, mytruelove18 said:

Why is his birth certificate take that long? , it is easy to get and you get it same day at the Oficialia in DR. all you need is a pdf form and print , you dont need original to send with the i-485. Some family member can get the birth certificate and scan and send it to you by email or whassapp

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I was told it had to be the original but if I can just get it sent to me that actually would solve this all. Thank you!

[mytruelove18 608]

  On 3/18/2024 at 10:48 PM, Worldtraveler222 said:

I was told it had to be the original but if I can just get it sent to me that actually would solve this all. Thank you!

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Read intructions, you dont send originals to uscis.

[mytruelove18 608]

  On 3/19/2024 at 10:19 AM, mytruelove18 said:

Read intructions, you dont send originals to uscis.

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You need translate the birth certificate. Translation can be done for you if you are fluent in both language