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[★ Pweettyy █▓▒░]

HI VJM!

I have met a Scottish friend who have been here in the US for 10 years illegaly, his visa was tourist and expired. Now, He and his girlfriend is planning to get married this coming December. Is there any way that HE can adjust his status and have a GREENCARD without being banned or deported?

Your responce is highly appreciated, thank you!

[payxibka]

potentially yes, first and foremost he needs to have his record of entry (I-94). does he still have this in his possession?

[English Muffin]

Is his girlfriend a USC?

[★ Pweettyy █▓▒░]

yes, he still have his I-94, AND YES his girlfriend is USC.

[Kathryn41]

As long as he can prove (with the I-94) that he entered the US legally, then when he and his fiancee marry, he can file an I-485 application to adjust status to Permanent Resident, and she would file an I-130 petition and include it in the same package. She also needs to provide an Affidavit of Support with the I-485 application. Once the I-485 is approved, his out of status time would be forgiven as the spouse of a US citizen.

[Just Bob]

Kathryn,

help me out here.
When I with the help of an immigration attorney prepared my AOS, she specifically pointed to April 1, 1997 as the key date before which applicants had to have entered the US in order to adjust from within the States. Naturally, I'm a bit confused now. Can you educate me please?

[payxibka]

Kathryn,

help me out here.
When I with the help of an immigration attorney prepared my AOS, she specifically pointed to April 1, 1997 as the key date before which applicants had to have entered the US in order to adjust from within the States. Naturally, I'm a bit confused now. Can you educate me please?

I believe that is in reference to an "amnesty" program for alien's who entered without inspection... alien's who enter without inspection (EWI) are prohibited from adjusting from within the USA unless there is some special "program".

[Kathryn41]

Kathryn,

help me out here.
When I with the help of an immigration attorney prepared my AOS, she specifically pointed to April 1, 1997 as the key date before which applicants had to have entered the US in order to adjust from within the States. Naturally, I'm a bit confused now. Can you educate me please?

From reading over the eligibility for filing I-485 at the USCIS website there is nothing that indicates April 1, 1997 as a significant date for spouses of US citizens' consideration. It has happened before - and will happen again - that lawyers give inaccurate information about the immigration process.

http://www.uscis.gov/portal/site/uscis/men...00045f3d6a1RCRD

A search through USCIS with the date April 1, 1997 and then additional searches adding 'Adjust status" also did not bring up any information about AOS applicants from visitor visas - only information about refugees or asylum situations or special circumstances. I suspect your lawyer misinformed you. The fact evidenced here on VJ alone of many who have successfully adjusted status as family members of US citizens from visitor/work/student visas and who were not here since April 1, 1997 indicates that the date is not relevant in this context.

This post has been edited by Kathryn41: Nov 2 2009, 10:40 PM

[payxibka]

IIRIRA

[Kathryn41]

IIRIRA

Thank you.

http://en.wikipedia.org/wiki/Illegal_Immig...ity_Act_of_1996

[Chris_Жанна]

I would like to ask a question.

If someone on a tourist visa can come here, stay illegally. How are they capable of adjusting status? Why wouldn't everyone with a tourist visa do this?

My fiancee has a b-2 tourist visa. Could she have stayed here and we just adjust status?

We both decided that it was the safest and most legal way for us to pursuit the k-1 path. I'm just wondering if I could have saved time apart and money if we just got married and adjusted status.

I apologize to the op but it looks like the question has been answered and I figured this is still pertaining to the subject somewhat.

Thanks

[kaus&Sanu]

HI VJM!

I have met a Scottish friend who have been here in the US for 10 years illegaly, his visa was tourist and expired. Now, He and his girlfriend is planning to get married this coming December. Is there any way that HE can adjust his status and have a GREENCARD without being banned or deported?

Your responce is highly appreciated, thank you!

a

[payxibka]

I would like to ask a question.

If someone on a tourist visa can come here, stay illegally. How are they capable of adjusting status? Why wouldn't everyone with a tourist visa do this?

My fiancee has a b-2 tourist visa. Could she have stayed here and we just adjust status?

Each case has its own individual facts and circumstances.... the answer would depend on those facts and circumstances

[JimVaPhuong]

I would like to ask a question.

If someone on a tourist visa can come here, stay illegally. How are they capable of adjusting status? Why wouldn't everyone with a tourist visa do this?

My fiancee has a b-2 tourist visa. Could she have stayed here and we just adjust status?

We both decided that it was the safest and most legal way for us to pursuit the k-1 path. I'm just wondering if I could have saved time apart and money if we just got married and adjusted status.

I apologize to the op but it looks like the question has been answered and I figured this is still pertaining to the subject somewhat.

Thanks

This is one of those gray areas of immigration law that doesn't really make any sense.

Someone who enters on a non-immigrant visa and overstays is guilty of overstaying their visa, but usually not guilty of visa fraud, even if USCIS believes it was their intention to overstay when they entered. The overstay can be forgiven if they marry a US citizen. If they leave the US and incur a ban, the ban can be lifted by applying for a waiver after being denied a spousal visa in their home country.

On the other hand, someone who enters on a non-immigrant visa with the intention of staying and obtaining legal permanent resident status IS guilty of visa fraud, and can incur a lifetime ban from the US for which there is no waiver.

Your fiancee could enter the US with a tourist visa, you could get married, and then apply for AOS. You're going to have to convince USCIS that this was not her intention when she entered in order to avoid the accusation that she misused the non-immigrant visa to immigrate. If you succeed, then your fiance will get her conditional green card. If you fail, then she'll be deported and banned, possibly for life.

USCIS is not likely to conclude that someone would actually enter the US with a non-immigrant visa with the INTENT to overstay for several years before getting married to a US citizen. Without the intent, they are guilty only of the overstay but not guilty of visa fraud.

Lawyers often recommend exactly what you describe - if your fiancee is already in the US they recommend you get married and apply for AOS. However, they usually recommend waiting at least 60 days after entry in order to avoid the automatic assumption of visa fraud by USCIS. Very few on VJ would recommend you do this because of the potential consequences if you fail. Someone who has been in the US illegally for 10 years hasn't got much to lose by trying.

[Chris_Жанна]

Thank you Jim for the clarification on this.

I appreciate you taking the time to explain this to me.