AoS from Overstay F1 Visa

[birdbirdbird 0]

My fiance and I are trying to figure out the best way to handle her overstay on an F1 visa. Here are the details:

I am a US Citizen. We have been engaged since April and dating since November 2011. She came to the US in 1999 with a F1 VISA. She briefly left for 6 months on vacation, returned with a new F1 VISA that continued until Summer 2008 when she graduated Uni. Then she got her OPT VISA till July 29th 2009.

In the midst of her OPT visa, she applied for her H1 Visa in April 2009. Her OPT expired July 29th 2009 before the USCIS sent back application results in October 2009. Her lawyer advised her to remain in the country while waiting for the results. Nothing ever came, but December 10th 2009 her online case status was updated with a denial of her H1 Visa Application. She and her lawyer were waiting for the official denial document to file an appeal, but she, her lawyer, and her employer never received this denial. USCIS says they did send it and that the 30 day window for appeal passed without hearing from her/her petitioner. Her lawyer and employer said they never received it.

The following 6 months with the lawyer were very unhelpful as his only plan was to send out another H1 VISA Application in 2010. The lawyer kept assuring her that her case was a "special case" and that he would let her know when the denial letter was received, which he never did. The last time she heard from her lawyer he said the case had been archived, but that it would still be fine (this was verbally said over the phone, unfortunately).

So, now, we are getting married and she has overstayed by 3 years. She has not left the country in this time. I am new to all of this, so would like to ask where we should start. From reading other threads it seems like simply getting married could solve all of this, but I want to make sure there are not other processes that need to be taken care of first that could jeopardize the AoS. It seems like this can get pretty hairy pretty fast and being ignorant of how to do things by the book as best we can, I thought it best to ask before assuming getting married will fix everything.

We are planning on consulting a lawyer who specializes in immigration law as well, but wanted to educate ourselves as best we could so we would know what questions to ask the new lawyer.

Thanks so much for any info/advice you have!

[Harpa Timsah 13,258]

Overstay is forgiven/irrelevant for spouses of US Citizens who adjust in-country. Getting married by itself does not protect her, but filing a concurrent I-130/I-485 package will. She should not travel abroad until she has her GC in hand, because exiting the country will give her a ban for overstay. Besides that, it should be a normal AOS from student visa case. Have you found the appropriate VJ guide up top?

[birdbirdbird 0]

Overstay is forgiven/irrelevant for spouses of US Citizens who adjust in-country. Getting married by itself does not protect her, but filing a concurrent I-130/I-485 package will. She should not travel abroad until she has her GC in hand, because exiting the country will give her a ban for overstay. Besides that, it should be a normal AOS from student visa case. Have you found the appropriate VJ guide up top?

is this the right guide?

US Citizen and Spouse both live/reside in the US:

----- I-130 Petition and Adjustment of Status Guide

the forum won't let me post a link yet..

[Penguin_ie 5,995]

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

[Darnell 8,479]

Overstay is forgiven/irrelevant for spouses of US Citizens who adjust in-country. Getting married by itself does not protect her, but filing a concurrent I-130/I-485 package will. She should not travel abroad until she has her GC in hand, because exiting the country will give her a ban for overstay. Besides that, it should be a normal AOS from student visa case. Have you found the appropriate VJ guide up top?

BirdBirdBird

You've known since the 18th of November for 'what to do'.

Why didn't you marry on the 19th and file the I-130/I-485 then?

Timsah's advice above was the best for you - why did you ignore it? Now your wife is in limbo.

[Darnell 8,479]

From reading other threads it seems like simply getting married could solve all of this, but I want to make sure there are not other processes that need to be taken care of first that could jeopardize the AoS.

I call BS. IE - you not read 'enough' - starting with The Guides Section.

[birdbirdbird 0]

BirdBirdBird

You've known since the 18th of November for 'what to do'.

Why didn't you marry on the 19th and file the I-130/I-485 then?

Timsah's advice above was the best for you - why did you ignore it? Now your wife is in limbo.

we did follow timsah's advice. timsah didn't say anything about travelling within the united states.

[Harpa Timsah 13,258]

I said that getting married by itself does not protect her in any way. So you waited 6 months to file after knowing that. She is deportable at any time.

[newacct 688]

I'm not exactly sure what's happening in this thread and something must be missing (Darnell's response from today indicates the OP didn't do anything since November, but there hadn't been any posts since November before that). But I wish to add that overstay on F1 generally does not count as "unlawful presence" and should not incur a ban. Also, what's the deal with "travelling within the united states"?

[Penguin_ie 5,995]

For explanation on recent comments: http://www.visajourney.com/forums/topic/428470-stuck-in-texas-surrounded-by-border-patrol-checkpoints/