Do we qualify for AOS?

[ameritica116 0]

So a brief of our situation...I met my husband in 07, we became more then friends in 08, we married in 09 and we are now doing the paperwork however, i'm starting to question if we can go about the AOS route. He came on an h2b visa in 06 and was promised a 6 month extension upon arrival but the extension was never given nor was work. He went through the Embassy and was approved for the h2b visa and he was inspected upon entry, but the visa was only good for a total of 17 days and he arrived on the 10th day the visa was good and only had 7 days remaining once here...I have done alot of research on the H2b and what the processes of getting one are, and everything checks out but the time length of the visa is where i'm getting confused. Does the embassy mandate how long the visa is good for? and if so shouldn't it be so many months as opposed to issue date to expiration date? I just need to know that we are applicable for the marriage based AOS before filing and finding out we should have gone through the 601 route...please if you have any information I would appreciate it.

Mz. P

[Darnell 8,478]

IF you are the US Citizen, and he lives with you, in the USA, out of status since 2006 -

then I don't know what to tell you.

The EMPLOYER attached to the H2B is supposed to handle authentication and verification of employment once the visa holder is IN the USA, once that is done, is possible to get extensions. It sounds like 'that' didn't happen, yes?

[ameritica116 0]

Yes that is correct, the extension never happened.

[Anh map 2,098]

Overstays are typically forgiven when marrying a US citizen.

Has he been working? And if yes, filing taxes?

It's probably worth having a consultation with a qualified immigration attorney to learn all the aspects of your case.

[Kathryn41 3,205]

If your husband entered the US legally - which he did - and had no intention of getting married when he entered - which he didn't - he is eligible to apply to adjust his status through his marriage to you. He is currently out of status and that is what is needed to be reported on the AOS, as well as his legal entry on the H2B visa. Once the AOS is approved his out of status time will be forgiven. If he has worked illegally during this time, it too will be forgiven once the AOS is approved.

On an added note: while he can apply for the AP (I-131 advance Parole travel document) at the same time there is no point in doing so. They will issue him an AP but he can't use it because the moment he leaves the US he will incur an automatic 10 year ban on re-entry (for more than 1 year out of status). You would then have to start the whole immigration process over with a CR-1/IR-1 visa and that would require an I-601 to waive the 10 year ban. If he is working now he should definitely apply for the I-765 - Employment Authorization Document.

The I-601 only needs to be filed when he already is in the US applying to adjust status if there are grounds for him being inadmissible to the US or being allowed to become a permanent resident, such as a criminal activities, certain health issues, membership in a totalitarian party, immigration fraud, in removal proceedings or some such listed problem, and you are requesting a waiver of this inadmissibility. Out of status time doesn't fall into this category when the AOS is based upon a marriage to a US citizen.

The instructions for the I-601 are here and list the conditions that require filing the I-601. Unless there is more that you haven't mentioned, the situation as you describe it does not require him to file the I-601 along with the I-485: http://www.uscis.gov/files/form/i-601instr.pdf .

Edited January 24, 2010 by Kathryn41

[Kathryn41 3,205]

Moved from AOS from Family Based Visas to AOS from Work, Student & Tourist Visas as more appropriate location

[ameritica116 0]

Thank you thank you thank you!!!

[ameritica116 0]

Moved from AOS from Family Based Visas to AOS from Work, Student & Tourist Visas as more appropriate location

Hi Kathryn,

I'm very familiar with the AOS process, but do you think that there will be questions regarding the visa since he did not get work nor an extension? I have never heard of a case like this but everything is signed off on and valid but since this doesn't sound similar I was uncertain...Please let me know what you think!

Thanks!