Overstayed, need to leave US for family - what are my options?

[Blue_blood 10]

If you leave the country before getting AP (or a green card) you will have a ban, and will have to file for a spousal visa from your home country along with a waiver for the ban. If you can wait 2-3 months before leaving, that would be best, as you can file AOS now and you will have your AP in 2-3 months, allowing you to leave the country and re-enter.

Thank you for the constructive comment. Even with the AP, my overstay is a risk upon returning to the US and this is my worry. I guess it is safer to wait until the AOS is through completely, but this just takes so much time (I was quoted 6 months on USCIS help line). The spousal visa you are talking about is the C1? I have not researched those thoroughly, only the AOS process.

This is absolutely untrue. Overstay is forgiven for the spouse of a US citizen (just don't leave the country, it only kicks in then).

Thank you, that is my information as well.

[belinda63 2,981]

You have several choices:

File for AOS now, obtain AP and hope there are no problems when you return. Legally you should be able to enter with AP but not every CBP is aware of the laws and legal cases regarding AP. That is why you would be taking a chance. Amount of time to receive AP after filing AOS 60-90 days provided the packet is submitted completely with no errors.

File for AOS and wait for the green card. Wait time about 6 months.

Leave, incur the ban, file for a CR-1 visa. Wait time about one year. Visa will be denied at the interview and a waiver will be needed. Additional wait time about six months.

Return home, wait for him to finish boot camp and his training and receive a permanent change of station. With you on the orders you can travel with him as his spouse. (verify this since you won't have a green card). File for DCF (if available) which will reduce the initial wait time. The visa will still be denied due to the overstay and a waiver will still be needed.

[Love Marry Stay 1]

but this just takes so much time (I was quoted 6 months on USCIS help line).

Sorry for the situation you find yourself in. I too was quoted 6 months, but got my green card in 2 months. Not all wait times are accurate, I'm hoping it all works out for you!

[Leo7777 243]

Blue Blood, you are correct that if you simply stay in USA and go through the complete AOS process there will be no consequences attached to your overstay etc.

The only hang-up is your inability to leave and re-enter the USA; or the substantial risk if you do so.

In reality, you are facing a situation which is an inherent problem for any of us becoming involved in a relationship with a person from another country.

There are going to be situations that we (or our foreign spouses) all will probably face at some point with aging parents, etc.

Although it is not talked about here much, this is something each person should consider before even getting involved with international romance.

Aside from your immediate situation of lack of travel authorization, we should all be considering what will happen when a family emergency arises back in the home country and we are involved with a time sensitive project at work, or a family member in USA needs our help, etc., etc.

At some point we have to decide which is more important to our future and the future of our family in the USA.

Think back to a hundred years or so ago. Family members back home became ill and died, and there was no possibility of getting back to them before death, etc. Life went on.

[vicks5721 18]

You have several choices:

File for AOS now, obtain AP and hope there are no problems when you return. Legally you should be able to enter with AP but not every CBP is aware of the laws and legal cases regarding AP. That is why you would be taking a chance. Amount of time to receive AP after filing AOS 60-90 days provided the packet is submitted completely with no errors.

File for AOS and wait for the green card. Wait time about 6 months.

Leave, incur the ban, file for a CR-1 visa. Wait time about one year. Visa will be denied at the interview and a waiver will be needed. Additional wait time about six months.

Return home, wait for him to finish boot camp and his training and receive a permanent change of station. With you on the orders you can travel with him as his spouse. (verify this since you won't have a green card). File for DCF (if available) which will reduce the initial wait time. The visa will still be denied due to the overstay and a waiver will still be needed.

Yeah I do agree with that

[blk 87]

Really I am certain that VWP you are not meant to use for intention to get married. You may get banned for 3 years for overstaying a year, sorry it is the truth. But if you did file now for AOS you may get to stay but it very unlikely as they will know you overstayed and so I doubt it would be approved. If you leave for sure you will be banned for 3 years and from using VWP again or you file for C1 or K3, you will have difficulties though. It probably isn't impossible to get C1 visa but it not be simple in your situation.

You can use the VWP to enter the US to get married then return back to you home country. How do you think that destination weddings happen, the only time it is classed as fraud is when a person has the intention to stay & adjust status at the time of their entry into the US.

Edited February 23, 2015 by blk

[ValerieA 350]

When I did AOS, it was taking 3-4 months from filing to receiving green card. That was quite a while ago. Check out the timelines of the members in here, I don't think it should take you 6 months to get your green card (although it COULD).

Technically, they have solidified the rules and even on an overstay you are supposed to be able to re-enter the country on AP, but people here usually don't recommend it because, as someone stated above, CBP officers are not always knowledgeable of everything to do with immigration. You should get back in with little or no hassle, but there is a chance you will encounter issues.

[Leo7777 243]

When I did AOS, it was taking 3-4 months from filing to receiving green card. That was quite a while ago. Check out the timelines of the members in here, I don't think it should take you 6 months to get your green card (although it COULD).

Valerie, I have seen timelines and other info here that shows everything from 2 months to 10+ months to get Green Card from AOS.

EAD and AP generally always comes within 90 days; but the Green Card timing is a real 'no one knows situation.'

Edited February 23, 2015 by Leo7777

[Blue_blood 10]

You have several choices:

File for AOS now, obtain AP and hope there are no problems when you return. Legally you should be able to enter with AP but not every CBP is aware of the laws and legal cases regarding AP. That is why you would be taking a chance. Amount of time to receive AP after filing AOS 60-90 days provided the packet is submitted completely with no errors.

File for AOS and wait for the green card. Wait time about 6 months.

Leave, incur the ban, file for a CR-1 visa. Wait time about one year. Visa will be denied at the interview and a waiver will be needed. Additional wait time about six months.

Return home, wait for him to finish boot camp and his training and receive a permanent change of station. With you on the orders you can travel with him as his spouse. (verify this since you won't have a green card). File for DCF (if available) which will reduce the initial wait time. The visa will still be denied due to the overstay and a waiver will still be needed.

Wow, thank you so much belinda63, great info. Am I correct in assuming that waiting until AOS is through is the best and safest bet (with the huge downside of not being able to help family out)? Is the CR1 visa denial a given based on the overstay? The six months extra are basically guaranteed?

Sorry for the situation you find yourself in. I too was quoted 6 months, but got my green card in 2 months. Not all wait times are accurate, I'm hoping it all works out for you!

thank you for your nice comment and I am close to SF too

[Blue_blood 10]

Blue Blood, you are correct that if you simply stay in USA and go through the complete AOS process there will be no consequences attached to your overstay etc.

The only hang-up is your inability to leave and re-enter the USA; or the substantial risk if you do so.

In reality, you are facing a situation which is an inherent problem for any of us becoming involved in a relationship with a person from another country.

There are going to be situations that we (or our foreign spouses) all will probably face at some point with aging parents, etc.

Although it is not talked about here much, this is something each person should consider before even getting involved with international romance.

Aside from your immediate situation of lack of travel authorization, we should all be considering what will happen when a family emergency arises back in the home country and we are involved with a time sensitive project at work, or a family member in USA needs our help, etc., etc.

At some point we have to decide which is more important to our future and the future of our family in the USA.

Think back to a hundred years or so ago. Family members back home became ill and died, and there was no possibility of getting back to them before death, etc. Life went on.

Thank you for your thoughtful reply Leo7777. You are correct about the wide reaching consequences of falling in love with someone from another country but I would not have it any other way. I believe that once AOS is through my "substantial risk" upon leaving and re/entering is gone. Correct?

[ValerieA 350]

Valerie, I have seen timelines and other info here that shows everything from 2 months to 10+ months to get Green Card from AOS.

EAD and AP generally always comes within 90 days; but the Green Card timing is a real 'no one knows situation.'

I agree, there are outliers. 2 months is shorter than most, and 10 months is way longer. I was just talking the experience of *most* VJers.

[ValerieA 350]

Thank you for your thoughtful reply Leo7777. You are correct about the wide reaching consequences of falling in love with someone from another country but I would not have it any other way. I believe that once AOS is through my "substantial risk" upon leaving and re/entering is gone. Correct?

Once you have your green card, yes. There is one codicil to this - and that's if you and your spouse ever move to another country, and you did not get citizenship while here. If you abandon your green card, the overstay becomes a factor again. It's a very rare instance, hardly worth mentioning.

[Blue_blood 10]

Once you have your green card, yes. There is one codicil to this - and that's if you and your spouse ever move to another country, and you did not get citizenship while here. If you abandon your green card, the overstay becomes a factor again. It's a very rare instance, hardly worth mentioning.

We are planning on staying here so this would not be a worry in the near future. My only concern was getting home NOW for the family, but the US would stay the primary residence. Will I ever run into trouble flying into the US after getting the AOS (and later green card)? Someone asked in another thread if they have to answer yes to "have you ever overstayed?". Thank you so much.

[asisflyer 47]

How Emergency is family emergency? 24 hours? 1 week ? 3 months?

You can do an Infopass request for Emergency AP as test the waters after filing.

You can ask Member of Congress to press for Emergency AP after filing.

How long? Who Knows. If you are expecting a few days, then these are not options based on my understanding.

NO GUARANTED RE-ADMISSION EITHER WAY - See Arrabally Decision - Long Read if you are up for it.

http://blogs.ilw.com/entry.php?5843-Bloggings-Matter-of-Arrabally-and-Yerrabelly-Advance-Parole-no-longer-considered-a-âdepartureâ-under-INA-§212(a)(9)(B)(i)(II)-by-Danielle-Beach-Oswald

As for returning and the ban, there is recent case law guidance on this, but the POE agents are not likely to be briefed on it. The case discusses meaning and intent of a grant in Advance Parole and how it may contradict the literal writings of the INA in reference to bans.

Do you want to have your attorney on standby at the Airport or Call Ahead to the Port Director with advice and you carry a copy of the case law finding. You can print a copy of this opinion as well and be prepared to defend it, but no one can guarantee anything in this department.

What do expect? I can't tell you.

If you exit without AP in your visa class, 485 will cancel on exit, ban will trigger. You will then need a waiver prior to any visa being considered, speak to counsel and do some research. you will need a waiver filed and approved to handle the overstay whether its DCF or non-DCF filing.

If you decide to go and manage the get the waiver, remember you may be able to swing the 319(b) Expedited Naturalization after your LPR without the time requirement due to husband's long term overseas posting!!!

[rinimina 7]

As everyone already mentioned, you should adjust your status asap and wait for the green card to come in the mail otherwise you will be taking a risk. Otherwise you could return to your home country and file for a spouse visa BUT there might be issues because your overstay will show on their system so the embassy and/or POE might deny entry into the country. My best advice would be to file for an AOS. You already took the risk and overstayed your visa... don't mess it up even more by leaving without a green card.

Good luck!