Help, can we do AOS??

[mamato2 0]

I have dual UK/USA and we've mainly be living in the UK. We've

come over now for 3 months and was thinking we may stay as our baby

has a very rare medical condition and the treatment is by far better

here. Of course the kids and me are fine here. This time they had a

problem because my husband has a dutch passport and he overstayed

before. We didn't know it was an issue since honestly he had done that

before and no one ever asked a question before.

We were married a while before he ever came to the USA, we have 2

kids, nothing against us but of course now the overstay and rejection

of entry.

He's I-94 is for 30 days. Can we apply for something else for him and

do his green card app? (we filed before but we moved back to the UK)

To say me and the kids are ok to live here but my husband of 8 years

has to leave is unfair, we'd all have to leave again.

[Dakine 26]

I have dual UK/USA and we've mainly be living in the UK. We've

come over now for 3 months and was thinking we may stay as our baby

has a very rare medical condition and the treatment is by far better

here. Of course the kids and me are fine here. This time they had a

problem because my husband has a dutch passport and he overstayed

before. We didn't know it was an issue since honestly he had done that

before and no one ever asked a question before.

We were married a while before he ever came to the USA, we have 2

kids, nothing against us but of course now the overstay and rejection

of entry.

He's I-94 is for 30 days. Can we apply for something else for him and

do his green card app? (we filed before but we moved back to the UK)

To say me and the kids are ok to live here but my husband of 8 years

has to leave is unfair, we'd all have to leave again.

If you weren't married in the US you'll have to do a normal spouse petition.

I imagine you'll have to do a waiver also for the overstay and rejection.

Edited July 19, 2009 by Haole

[mamato2 0]

you have to get married again in the USA? they never told us that before. we've been married for 8 years and have 2 kids

[Kathryn41 3,205]

No, he isn't saying you have to get married again. He is saying that you would have have to apply for a spousal visa - an IR-1 in this case - for permission for your non-US spouse to return to the US to live.

Was your baby born in the US and was his/her medical condition just diagnosed here in the US or did you know about it before your arrival? If you entered the US without the intention of staying and you discovered your child's medical condition after your arrival and have changed your plans about staying, you would be able to file for AOS for your husband based on that developing situation. If you knew of your child's condition before your arrival and hope to seek medical care for him/her here, then your intention was to remain and your husband can not adjust status from a visitor's visa - you need to sponsor him as your spouse and the processing will be done overseas. With the overstay he may require a waiver, but with your child's medical condition you would probably stand a good chance for a hardship waiver to allow his re-entry.

You might want to visit a competent immigration lawyer for a consultation visit. There are a number of complications in your situation that would probably benefit from a knowledgeable immigration lawyer.

Edited July 19, 2009 by Kathryn41

[mamato2 0]

so he'd have to leave the country, ie. we'd all have to leave the country then apply?

he applied for a I-130 from within the USA before, why can't he do it this time?

[Penguin_ie 5,985]

so he'd have to leave the country, ie. we'd all have to leave the country then apply?

he applied for a I-130 from within the USA before, why can't he do it this time?

As previous posters said, it all depends on intent. If your/ your husband's intent was to stay int he USA when he came this time, then that is illegal. If you came for a holiday, then decided to stay (because of the child's condition or whatever reason), you can try and file AOS but you will have to proof that you didn't intent to stay before you came (show you still have ties to the UK etc).

You do have the option to file for the normal spousal visa now, and when your husband's 30 days are up on the visitor's visa, he can go back home and wait for the visa in the UK, with or without you.

You mentioned in your other thread ( Hardship waiver) about a hardship waiver for your husband due to the kids and your MS, but I am confused as your husband is currently in the USA. Did he enter illegally or legally? If legally, did he get a visa despite the previous overstay? If so, his chances of getting a spousal visa/ hardship waiver may be better than previously indicated in the other thread.

Edited July 20, 2009 by Penguin_ie

[mamato2 0]

so he'd have to leave the country, ie. we'd all have to leave the country then apply?

he applied for a I-130 from within the USA before, why can't he do it this time?

As previous posters said, it all depends on intent. If your/ your husband's intent was to stay int he USA when he came this time, then that is illegal. If you came for a holiday, then decided to stay (because of the child's condition or whatever reason), you can try and file AOS but you will have to proof that you didn;t intent to stay before you came.

You do have the option to file for the normal spousal visa now, and when your husband's 3 months are up on the visitor's visa, he can go back home and wait for the visa in the UK, with or without you.

You mentioned in your other thread about a hardship waiver for your husband due to the kids and your MS, but I am confused as your husband is currently in the USA. Did he enter illegally or legally? If legally, did he get a visa despite the previous overstay? If so, his chances of getting a spousal visa/ hardship waiver may be better than previously indicated in the other thread.

We came for a 90 day visit, to see my mother, and take my child to the doctor over here. They said they couldn't allow him a 90 day visa wavier, so they gave him a normal I94 for 30 days. But I think it's unfair that we have to leave so quick!

They said we couldn't extend the visa but it wouldn't hurt his chance at a green card. The people were actually very nice strangly enough.

We never mentioned any of the medical issues as they never asked and well we were half asleep to be honest.

I'm jet lagged and not really understanding the whole thing, hence why I am here as I'm sure others know tons more than I do.

Do we need a lawyer? Can we apply again for the I-130? Is there an extension we can do?

Right now he is here legally, but only for another 27 days

[Penguin_ie 5,985]

You can try for an extension, and if your mother's death is imminent (as proven by doctor's letters, he may get it for another month or so, but I wouldn't count on it. You can file for the I-130, but your husband would need to return to the UK after his current visa is up, and await the approval of the I-130 and subsequent visa.

I don't think a lawyer is going to help from getting the visa point of view, but as you are stressed with the kids and MS and your dying mom, a lawyer might be a good idea just to help with any paperwork and make sure you don't forget anything if/ when you file for whatever. Good immigration lawyers tend to be very expensive though.

You have a very hard situation there, and I understand with your illness and your mother's health it would be difficult for you to look after the kids too, but from the US government's point of view, they are not stopping you from being in the USA, or going to the UK, they are only concerned with your husband.

[mamato2 0]

You can try for an extension, and if your mother's death is imminent (as proven by doctor's letters, he may get it for another month or so, but I wouldn't count on it. You can file for the I-130, but your husband would need to return to the UK after his current visa is up, and await the approval of the I-130 and subsequent visa.

I don't think a lawyer is going to help from getting the visa point of view, but as you are stressed with the kids and MS and your dying mom, a lawyer might be a good idea just to help with any paperwork and make sure you don't forget anything if/ when you file for whatever. Good immigration lawyers tend to be very expensive though.

You have a very hard situation there, and I understand with your illness and your mother's health it would be difficult for you to look after the kids too, but from the US government's point of view, they are not stopping you from being in the USA, or going to the UK, they are only concerned with your husband.

but can't he stay while they do the I-130? he stayed the first time while we were waiting on the I-130, why can't he now when it is even more important?? I don't understand any of this

[diadromous mermaid 36]

They said they couldn't allow him a 90 day visa wavier, so they gave him a normal I94 for 30 days. But I think it's unfair that we have to leave so quick!

I think, actually, you are very lucky. Many would have been turned back at the POE!

You've already demonstrated "immigrant intent" by filing an I-130 earlier (even though you left to go to the UK before it was complete). Frankly, you should be counting your blessings that your husband was only slapped on the wrist. Why are you pushing it?

You can try for an extension, and if your mother's death is imminent (as proven by doctor's letters, he may get it for another month or so, but I wouldn't count on it. You can file for the I-130, but your husband would need to return to the UK after his current visa is up, and await the approval of the I-130 and subsequent visa.

I don't think a lawyer is going to help from getting the visa point of view, but as you are stressed with the kids and MS and your dying mom, a lawyer might be a good idea just to help with any paperwork and make sure you don't forget anything if/ when you file for whatever. Good immigration lawyers tend to be very expensive though.

You have a very hard situation there, and I understand with your illness and your mother's health it would be difficult for you to look after the kids too, but from the US government's point of view, they are not stopping you from being in the USA, or going to the UK, they are only concerned with your husband.

but can't he stay while they do the I-130? he stayed the first time while we were waiting on the I-130, why can't he now when it is even more important?? I don't understand any of this

[Kathryn41 3,205]

Quite honestly, it would look very suspicious if your husband entered as a visitor with permission to stay 30 days, is told that time cannot be extended and then applies right away for an I-130/485 to adjust status. You have been here 3 days and already are inquiring about how to adjust status for your husband so he doesn't have to leave. That seem to shout intent to immigrate by using a visitor's visa, which is considered visa fraud and can lead to a lifetime ban from ever being allowed in the US. What did you do with your belongings back home? Did you quit your jobs? Sell your house or give up your lease? These are things that immigration will question when determining 'intent'.

It sounds like the border authorities treated you very fairly and have told you that you can apply for a spousal visa without prejudice. The spousal visa needs to be processed outside of the US. It will take time but he will be here legally. You are also going to have to address the Affidavit of Support issue - you will need to prove - whether you go the spousal visa route or try to adjust status here in the States - that you can financially support your whole family.

If you are both living legally in the UK, you can also return to the UK and file for a DCF - the quickest process there is for a married partner to come to the US. You, the American citizen, however, need to be legally resident in your partner's country in order to file a DCF (Direct Consular Filing). You might want to give this option serious consideration rather than trying to adjust his status from a visitor's visa, especially as he is already on USCIS' radar. With your apparently obvious 'intent', to do so would be illegal and is certainly not worth the risk of a lifetime ban.

Edited July 20, 2009 by Kathryn41

[diadromous mermaid 36]

One more issues that you should be aware of. When an alien enters the country on a VWP and remains to apply to adjust status, he essentially waives his right to appeal. So, if for some reason USCIS didn't buy that this was an impromptu trip with no prior intent to remain, if for some reason the application were denied, he'd have no right to appeal. He already has an overstay (how long, by the way?)...he'd have another on his hands.

[mamato2 0]

One more issues that you should be aware of. When an alien enters the country on a VWP and remains to apply to adjust status, he essentially waives his right to appeal. So, if for some reason USCIS didn't buy that this was an impromptu trip with no prior intent to remain, if for some reason the application were denied, he'd have no right to appeal. He already has an overstay (how long, by the way?)...he'd have another on his hands.

he has a plain I-94 no visa wavier, he has no overstay now, so why not do the I-130 and stay like he did in 2004?

[diadromous mermaid 36]

One more issues that you should be aware of. When an alien enters the country on a VWP and remains to apply to adjust status, he essentially waives his right to appeal. So, if for some reason USCIS didn't buy that this was an impromptu trip with no prior intent to remain, if for some reason the application were denied, he'd have no right to appeal. He already has an overstay (how long, by the way?)...he'd have another on his hands.

he has a plain I-94 no visa wavier, he has no overstay now, so why not do the I-130 and stay like he did in 2004?

Hmm. Much to be learnt. Did your husband apply for a tourist visa to come to the USA this last time?

[mamato2 0]

One more issues that you should be aware of. When an alien enters the country on a VWP and remains to apply to adjust status, he essentially waives his right to appeal. So, if for some reason USCIS didn't buy that this was an impromptu trip with no prior intent to remain, if for some reason the application were denied, he'd have no right to appeal. He already has an overstay (how long, by the way?)...he'd have another on his hands.

he has a plain I-94 no visa wavier, he has no overstay now, so why not do the I-130 and stay like he did in 2004?

Hmm. Much to be learnt. Did your husband apply for a tourist visa to come to the USA this last time?

he said we came to live here for 3 months.

but overstay's I thought were forgiven if your married to a american?

I just don't know why in 2004 it was ok to overstay and do the I-130 but it's not OK now?