Permanent residence marrying overstayed visa holder HELP!

[Exsur 0]

Hi there,

*I'm not sure if I'm posting in the right forum category, if not, feel free to move my post to the correct category.*

I know I will probably eventually need to find an immigration lawyer regarding my situation, but I thought I'd get my research started on here!

Let me start off by saying that my boyfriend and I are a same-sex couple. I met him last year in USA, and we are planning to get married in the next year. However this is the situation, he came here from Thailand on an F-1 student visa to study in a language school here. Unfortunately he overstayed his visa and it has been around 5 months since he overstayed. As for me, I am a Thai citizen, and I've had a Permanent residence card since '07 but only started living in the USA since September 2013. From 2007-2013 I was living in Thailand for college and traveled back to USA every 10-11 months to only stay around 2 weeks to 1 month time each trip.

Back to my boyfriend and I, as I know he can marry me but since I am only a green card holder now, that doesn't grant him automatic access to the green card. From what I've read online, if we get married while I'm still a permanent residence, it is required for him to go back to Thailand to wait for his green card there. Moreover, since he overstayed his visa, he will be banned from entering the US for 3-10 years.

Here are a list of questions I have that needs your help clarifying:

1. I know my travel history will definitely disrupts my continuous residence and I will need to stay another 4 years to complete the 5 years residency before i'm able to apply for citizenship is that correct? if not, how long do I have before I can begin the naturalization process?

2. Once I get married with him next year, should I petition for a green card for him right away or should I wait until I'm naturalized before filing a petition?

3. We are thinking to start building supports to prove that our marriage is bona fide. We will open a joint account/ joint credit cards, proof of same address with him, and etc. Will this increase his risk of getting deported or should we just lay low? He's afraid that if there are records of where he actually lives, immigration officer would come and take him.

4. In case of us filing the petition for green card for him while I'm still a permanent residence and he gets a ban of 3 or 10 years. Can I file an unlawful presence waiver for him by showing extreme hardships? What's the possibility of it being approved?

5. Is there any other way that he can stay in the US and adjust his status here?

6. What are the other options for us at this point?

Thank you so much for your help!

[Transborderwife 4,666]

1. I am unsure

2. You can try but his overstay will not be forgiven as a spouse of only an LPR. Is he working illegally? That could be another issue. You could potentially place your spouse in removal proceedings doing this. However, him overstaying another 4 years could indeed do that as well.

3. If you get a marriage licence ICE can find out that way as you provide an address. If he used the internet ip addresses can be used to track him. Nobody is going to help you circumvent the law. There are lots of ways that they can find out where he is. Or, they simply issue an order and mail it out to his last known address he doesn't receive it and can be placed in proceedings in absentia. All uscis has to do is prove that they sent the order. Wether he received it or not is not their problem.

4. No. Hardship wavers are for citizens only.

5. Not likely

6. He returns home and you file a k1

As well, he receives a ban only after 180 days unlawful presence so he'd better return quickly.

Edited December 17, 2014 by Transborderwife

[southcoast 27]

Hi there,

*I'm not sure if I'm posting in the right forum category, if not, feel free to move my post to the correct category.*

I know I will probably eventually need to find an immigration lawyer regarding my situation, but I thought I'd get my research started on here!

Let me start off by saying that my boyfriend and I are a same-sex couple. I met him last year in USA, and we are planning to get married in the next year. However this is the situation, he came here from Thailand on an F-1 student visa to study in a language school here. Unfortunately he overstayed his visa and it has been around 5 months since he overstayed. As for me, I am a Thai citizen, and I've had a Permanent residence card since '07 but only started living in the USA since September 2013. From 2007-2013 I was living in Thailand for college and traveled back to USA every 10-11 months to only stay around 2 weeks to 1 month time each trip.

Back to my boyfriend and I, as I know he can marry me but since I am only a green card holder now, that doesn't grant him automatic access to the green card. From what I've read online, if we get married while I'm still a permanent residence, it is required for him to go back to Thailand to wait for his green card there. Moreover, since he overstayed his visa, he will be banned from entering the US for 3-10 years.

Here are a list of questions I have that needs your help clarifying:

1. I know my travel history will definitely disrupts my continuous residence and I will need to stay another 4 years to complete the 5 years residency before i'm able to apply for citizenship is that correct? if not, how long do I have before I can begin the naturalization process?

2. Once I get married with him next year, should I petition for a green card for him right away or should I wait until I'm naturalized before filing a petition?

3. We are thinking to start building supports to prove that our marriage is bona fide. We will open a joint account/ joint credit cards, proof of same address with him, and etc. Will this increase his risk of getting deported or should we just lay low? He's afraid that if there are records of where he actually lives, immigration officer would come and take him.

4. In case of us filing the petition for green card for him while I'm still a permanent residence and he gets a ban of 3 or 10 years. Can I file an unlawful presence waiver for him by showing extreme hardships? What's the possibility of it being approved?

5. Is there any other way that he can stay in the US and adjust his status here?

6. What are the other options for us at this point?

Thank you so much for your help!

1. You will have to wait to establish residence

2. Since you will have to wait several years to natz. I would file now and apply for a provisional waiver. I-601

3.I would go ahead and live my life with a focus on building evidence of a bona fide relationship. It is extremely unlikely that ICE is going to break down the door. You will need significant evidence of hardship to obtain your waiver and part of this is establishing a documented long-term relationship. If ICE did detain him, the judge would certainly admin close your case and allow you to apply for the I601a.

4 and 5. Under current law he cant adjust unti you are a USC. But if you get a provisional waiver then he doesn't need to worry about the 3/10 bars. Get married- apply for a 601a. If you get it send him home to consular process and if you don't then just stay put. They don't use data from 601a applications to commence enforcement actions assuming there are no criminal issues.

[Transborderwife 4,666]

Sorry I'm wrong, LPR's can get waivers. However extreme hardship has to prove why you cannot go and live in his country as well. Extreme hardship is not "I miss him and want to be with him"

Edited December 17, 2014 by Transborderwife

[milimelo 4,191]

Less than 6 month overstay - no ban. Time for BF to go home. Before he leaves, you can get married and you can start I-130 petition for him (F2A visa). 2 yrs later he'll be back - depends on the progress of visa bulletin - check here: http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html

[dnp2014 44]

Hi there,

*I'm not sure if I'm posting in the right forum category, if not, feel free to move my post to the correct category.*

I know I will probably eventually need to find an immigration lawyer regarding my situation, but I thought I'd get my research started on here!

Let me start off by saying that my boyfriend and I are a same-sex couple. I met him last year in USA, and we are planning to get married in the next year. However this is the situation, he came here from Thailand on an F-1 student visa to study in a language school here. Unfortunately he overstayed his visa and it has been around 5 months since he overstayed. As for me, I am a Thai citizen, and I've had a Permanent residence card since '07 but only started living in the USA since September 2013. From 2007-2013 I was living in Thailand for college and traveled back to USA every 10-11 months to only stay around 2 weeks to 1 month time each trip.

Since you are an LPR while in the US your spouse can't adjust his status. If you are planning to marry then you should marry in US because Thailand law doesn't allow same-sex marriage ( Recognize). As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage

[Exsur 0]

Thank you everyone for your replies. I guess this is what I will do -

Get married --> build evidence of a bona fide relationship --> file I-130 --> file I-601 and we'll see from there and hope for the best.

One more question, if we file his I-130 in January where his overstayed status is at 6 months, if he stays in the US during the process of I-130 will his overstayed status grow longer or will it stop at 6 months because that's when he file the I-130?

Thank you so much.

[Transborderwife 4,666]

Thank you everyone for your replies. I guess this is what I will do -

Get married --> build evidence of a bona fide relationship --> file I-130 --> file I-601 and we'll see from there and hope for the best.

One more question, if we file his I-130 in January where his overstayed status is at 6 months, if he stays in the US during the process of I-130 will his overstayed status grow longer or will it stop at 6 months because that's when he file the I-130?

Thank you so much.

Yes, his overstay will grow. But what would your hardship be?

You need to file an I-601A if he is to stay in country. I believe that waiver is for citizens only. Time for him to go back unfortunately.

[aleful 1,905]

hi

for now, get married and file the i130, the waiver is for a later date, he can leave now and there will be no ban, the ban starts after 6 months

you are lucky they didn't take away your GC because you didn't live here and you didn't mention a reentry permit. for you to become a USC it would take 4 to 5 years, the clock restarted every time you were away for over 6 months for continuous presence in the US

he'll get the GC sooner than that if you do things right, he could leave now and have his interview over there, no ban

the wait for a GC is close to 2 years until his priority date becomes current and he has his interview in his country

option 2 he overstays, and if the President's executive order still stands, he will be able to file the i601A in the US once the date is current and there is a visa available, you will pay the forms at the NVC or National Visa Center and file the provisional waiver in the US before he leaves to have his interview in his country