US citizen married immigrant on B2 out of status

[DAVIS26 1]

I am a US citizen and my wife came to the US in dec 2009 on a b2 visa. Her I-94 expired June 2010. I married my wife in Aug 2010 two months after her visa expired and overstayed. It's been almost a year or so since she overstayed and now I have all the forms ready to file for an AOS. Can i send forms I-130 with AOS forms? I also would like the option to send I-131 and I-751 but being hesitent because I don't know if we should for apply for reentry permit or advance parole for the travel document. I read the intruction for the travel document and made me confused, almost as if my wife could be banned from reentry to the US for x amount of years becase she overstayed.do we have to apply for an I-821 TPS before I file for I-130 and AOS?? Please help

[Karenbel 1]

Yes, file I-130 Petition along with I-485, I-134, I-693 and I-765 EAD all together. I did separately and it's taking forever. You don't have to apply for anything else before the I-130 and 485. I would definitely hold off on the travel documents if you're not sure.

[canadian_wife 1,822]

http://www.visajourney.com/content/i130guide2\

Here is a guide for you, all your question's answers are in there

Good luck

[Blob18 111]

She already triggered the 3 year ban due to 180 days overstaying and she is coming up close on 1 year overstay which triggers a 10 year ban. More than likely the petition will be denied and you will need to file a waiver once that happens.

[NigeriaorBust 4,087]

She might be given an AP document but her overstay trumps it and she would be banned from reentering when she tried to use it. AP documents are only good for people in good standing when they apply for it. She is stuck here until you have a green card unless she want to wait out her soon to be 10 year ban or you have good cause to get a waiver approved ( and she would wait outside while it processes )

[Harpa Timsah 13,258]

She already triggered the 3 year ban due to 180 days overstaying and she is coming up close on 1 year overstay which triggers a 10 year ban. More than likely the petition will be denied and you will need to file a waiver once that happens.

This is incorrect. Overstay is irrelevant/forgiven for immediate relatives of US Citizens who entered with a valid visa. She does not have a ban yet because she is still in the country and did not leave. If she leaves any time before she has her GC, she will trigger that ban. Once she gets the GC, she can travel freely. I wouldn't bother filling out the I-131 because she cannot use it because of the overstay (if she does she would trigger that ban, even with an Advance Parole Document in hand). Follow the guide linked by Candian_wife and send the forms altogether to the Chicago Lockbox designated. Good luck.

Also, check out this forum:

http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

[Blob18 111]

This is incorrect. Overstay is irrelevant/forgiven for immediate relatives of US Citizens who entered with a valid visa. She does not have a ban yet because she is still in the country and did not leave. If she leaves any time before she has her GC, she will trigger that ban. Once she gets the GC, she can travel freely. I wouldn't bother filling out the I-131 because she cannot use it because of the overstay (if she does she would trigger that ban, even with an Advance Parole Document in hand). Follow the guide linked by Candian_wife and send the forms altogether to the Chicago Lockbox designated. Good luck.

Also, check out this forum:

http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

You can get techical all you want. The U.S. government could care less about the technicality of it all. Fact is she has been here out of status/illegally for almost a year which will result in a 10 year ban. That ban will occur when she files for the greencard and/or AP, as it will become apprent to them, or she leaves.

Let's not play semantics here mkay. She will receive the ban no matter what she files for, as it becomes apparent she overstayed illegally, regardless of what she files for.

Besides, we don't know the whole story about the B-2 visa and then getting married. USCIS could cite them with immigration fraud as well. This case isn't as simple as "File for a greencard and it's all ok". It's all clearly spelled out on the U.S. State Department Website on what can/will occur due to visa overstay/out of status.

Edited April 22, 2011 by Blob18

[Harpa Timsah 13,258]

You can get techical all you want. The U.S. government could care less about the technicality of it all. Fact is she has been here out of status/illegally for almost a year which will result in a 10 year ban. That ban will occur when she files for the greencard and/or AP, as it will become apprent to them, or she leaves.

Let's not play semantics here mkay. She will receive the ban no matter what she files for, as it becomes apparent she overstayed illegally, regardless of what she files for.

Besides, we don't know the whole story about the B-2 visa and then getting married. USCIS could cite them with immigration fraud as well. This case isn't as simple as "File for a greencard and it's all ok". It's all clearly spelled out on the U.S. State Department Website on what can/will occur due to visa overstay/out of status.

Incorrect again. She will not get a 10-year ban because the ban is triggered on leaving and she has not left. Please read up on the law before you suggest such things. I can see you are angry, but it is the law. I am not playing semantics, rather I am giving the OP correct information. Yes, she has enough overstay to trigger such a ban if she left, but she has not left yet.

I never said all will be okay. They will have to show that they have a bona fide marriage. They won't be successful if they don't have one, but they will be successful if they do. The overstay will not be relevant in determining anything. It is not something the IO can use to make a decision in this case.

OP - I will request this thread get moved to the forum I linked. Posting in the wrong forum might attract people who aren't familiar with your type of case, and derail your thread.

[DAVIS26 1]

Incorrect again. She will not get a 10-year ban because the ban is triggered on leaving and she has not left. Please read up on the law before you suggest such things. I can see you are angry, but it is the law. I am not playing semantics, rather I am giving the OP correct information. Yes, she has enough overstay to trigger such a ban if she left, but she has not left yet.

I never said all will be okay. They will have to show that they have a bona fide marriage. They won't be successful if they don't have one, but they will be successful if they do. The overstay will not be relevant in determining anything. It is not something the IO can use to make a decision in this case.

OP - I will request this thread get moved to the forum I linked. Posting in the wrong forum might attract people who aren't familiar with your type of case, and derail your thread.

Thank you so much for your information. I will send all forms together without the i-131. We have a beautiful baby daughter that a month and half old. My daughter's birth certificate, certified marriage certificate and joint financial are the documents I will be using to bona fide our marriage.

[Otto 83]

Thank you so much for your information. I will send all forms together without the i-131. We have a beautiful baby daughter that a month and half old. My daughter's birth certificate, certified marriage certificate and joint financial are the documents I will be using to bona fide our marriage.

Most folks file the AP/I-131 even if they never intend on using it (and presumably you've ruled out any international travel for the next x-months until a PR/Green Card is issued). As was pointed-out/linked-above, there's a pretty good how-to Guide that most folks find invaluable. Welcome to VJ

**Topic is really AOS-(other) related rather than a Tourist Visa subject; will move this thread to the correct forum.

[Little_My 464]

You can get techical all you want. The U.S. government could care less about the technicality of it all. Fact is she has been here out of status/illegally for almost a year which will result in a 10 year ban. That ban will occur when she files for the greencard and/or AP, as it will become apprent to them, or she leaves.

Let's not play semantics here mkay. She will receive the ban no matter what she files for, as it becomes apparent she overstayed illegally, regardless of what she files for.

Besides, we don't know the whole story about the B-2 visa and then getting married. USCIS could cite them with immigration fraud as well. This case isn't as simple as "File for a greencard and it's all ok". It's all clearly spelled out on the U.S. State Department Website on what can/will occur due to visa overstay/out of status.

OP, this is incorrect as was pointed out by Harpa Timsah. She DOES NOT have a ban at the moment, but she WILL trigger it the moment she leaves the US - so what you need to make sure is that she does not under any circumstances cross the US border to any other country until she has the green card in her hand. There is no point in filing for the I-131 advance parole document, it will be useless to her because of the overstay and might just confuse you, as it might seem as though she is eligible to travel with that - She is NOT. So don't bother to apply for it.

You file all the rest of the paperwork and get all your ducks in a row to show that your marriage is bona fide. You have a child together, which is pretty much the best kind of proof there is. People AOS from overstays all the time with no problems whatsoever - the main thing is that she entered legally, with a visa, and has not left the US since the visa expired.

Again, the ban will not occur when you file - it will only take affect if she leaves the US. Overstay is forgiven for spouses of USCs.

[Otto 83]

Again, the ban will not occur when you file - it will only take affect if she leaves the US. Overstay is forgiven for spouses of USCs.

I tend to agree here.

There are plenty of folks here on VJ that have filed AOS under similar circumstances as you guys have/will and doing so did not trigger bans. It's very likely you will hear from some of these folks here in this topic.

(Of course, none of this is legal advice and is no substitute for professional counsel.)

[Eddyy 5]

Again, the ban will not occur when you file - it will only take affect if she leaves the US. Overstay is forgiven for spouses of USCs.

Hmmm I hope you are right for their sake but why do we go through the process then of filling for a K-1 visa? I mean I had a tourist visa, I didn't overstay but we could have gotten married when I was in the States and I would be forgiven?

I don't think it's that simple as some people claimed. I guess since you have nothing to lose, you can go for it and do anything you can to make your wife legally stay in the US

[Myopia 93]

Hmmm I hope you are right for their sake but why do we go through the process then of filling for a K-1 visa? I mean I had a tourist visa, I didn't overstay but we could have gotten married when I was in the States and I would be forgiven?

I don't think it's that simple as some people claimed. I guess since you have nothing to lose, you can go for it and do anything you can to make your wife legally stay in the US

The worst thing on VJ are people who really don't know what they are talking about and thats ok as long as when you do talk you give correct information. I can attest to that because at times I have given misinformation and then felt worried that my bad advice may have caused someone to make a move that they would not have made before I opened my big mouth!

The Immigration process is not limited to K1/ CR1 and those other types of visas. There is a process which allows people who are already in the US to adjust status from out of status to in status. Being in status means becoming a legal permanent resident. You went through the process because your situation was different. You met your spouse and wanted to bring her to the USA so you did it by the book (so to speak).

Had you remained in the US , got married and then filed for your LPR status you would have had that overstay forgiven.

Bear in mind people overstay for a variety of reasons, it is not always because they intend to circumvent the "right way".

Edited April 22, 2011 by Myopia

[DAVIS26 1]

I just want to thank VJ! This is going make filing a lot easier. This forum's community has been great and I would like to personally thank each and everyone who replied on this thread. Again thank you, all paperwork is done, signed, checks enclosed. I'll be sending it to Chicago by tomorrow morning. THANK YOU!!!