Marriage To Russian Living In the USA

[BrandonLG 0]

I've been in a relationship with a Russian girl who lives in the USA for some time now. Things are getting serious and so I am beginning to wonder what the process would be if I did decide to marry this girl. Here is our situation:

She has been in the USA for a little under 4 years. She came here legally on a visa, but has overstayed her visa for a few years now and so is here illegally now. Is this a very big problem? A lawyer told me as long as she doesn't leave she can marry and become a citizen without a problem, but to leave now would be a lifetime ban from the USA. I wanted to come here and ask if that's true.

I was reading the guides and I see something about an i-130 and an i-485. Which would apply in our case? Could someone provide a quick summary of what the paperwork process would be?

[yohino 22]

Both the I-130 and the I-485 applies in your case, as you will be adjusting her status, there is a guide about this up there in the tabs.

http://www.visajourney.com/content/i130guide2

One thing, walk (or run) away from this lawyer, she would incur a ban if she left, but it would be a 10year ban, not a lifetime. Unless she has done something else then what you are telling.

And, she would be a Resident after you petition is approved, citizenship comes a while after that.

Shouldn't be a problem since overstay is forgiven for an immediate relative to a USC.

[AlinaH 38]

I may be wrong, but if she left willingly, then she wouldn't get a ban right? Isn't that only if you're deported?

[Dakine10 5,452]

I may be wrong, but if she left willingly, then she wouldn't get a ban right? Isn't that only if you're deported?

There are separate bans for illegal presence and for being deported. By leaving voluntarily, she would only avoid the ban for being deported, NOT the ban for illegal presence.

[VanessaTony 3,567]

I may be wrong, but if she left willingly, then she wouldn't get a ban right? Isn't that only if you're deported?

There's a 10 year ban for being deported and a ban for overstaying, depending on the length of overstay.

If the overstay is more than 180 days but less than 365 days then it's a 3 year ban. If the overstay is more than 365 days the ban is 10 years.

The bans aren't added together though so it's not a 20 year ban (her overstay and if she gets deported) it would just be 10 years BUT if she tried to come back (say via a k1 visa or spousal visa) she would need to apply for a waiver for both the overstay AND the deportation which is why it's preferable if you can get voluntary departure to do that to avoid at least one waiver application.

[BrandonLG 0]

Thanks everyone for your replies. We really have no intention for her to leave. I just wanted to know what would happen if we married and then tried to get her legal from within the USA not abroad. Would she be refused on her AOS because of this overstay?

[Dakine10 5,452]

Thanks everyone for your replies. We really have no intention for her to leave. I just wanted to know what would happen if we married and then tried to get her legal from within the USA not abroad. Would she be refused on her AOS because of this overstay?

The overstay would not affect her AOS. A person who enters legally and overstays is eligible to adjust status to become a permanent resident. As an I-130 beneficiary of a USC spouse, a waiver is not needed for the overstay.

Once the AOS is approved, she becomes a permanent resident, and the overstay becomes irrelevant.

[BrandonLG 0]

The overstay would not affect her AOS. A person who enters legally and overstays is eligible to adjust status to become a permanent resident. As an I-130 beneficiary of a USC spouse, a waiver is not needed for the overstay.

Once the AOS is approved, she becomes a permanent resident, and the overstay becomes irrelevant.

That's great to hear. Thank you and everyone else very much for your help!

[Dakine10 5,452]

That's great to hear. Thank you and everyone else very much for your help!

Your Welcome. One more thing I should have asked just to be sure though - what type of visa did she initially come on?

[BrandonLG 0]

She came here on a J-1 Visa

[BrandonLG 0]

But she changed her visa while still in the USA to a travel visa, if that matters.

[Otto 83]

** Since this involves a AOS from a J-1 visa, this topic may be more appropriate in the AOS Tourist/Work Forum (rather than AOS Family-based); moving thread there.

[Dakine10 5,452]

But she changed her visa while still in the USA to a travel visa, if that matters.

Those are OK. There are a few visa types where one is not eligible to adjust status but J1 and B2 (visitors visa) are both good.

[Blake and Jeanie 4]

If she had a J-1 visa, make sure she doesn't have to fulfill a 2 year home residence requirement, as this might be an issue during the adjustment of status process.

[JimVaPhuong 4,863]

But she changed her visa while still in the USA to a travel visa, if that matters.

J1 and B2 are ok. As Blake said, make sure her J1 didn't have a two-year home residency requirement. If it did then she needs to either fulfill that requirement (go back to her home country for at least two years) or get the requirement waived before she can apply for a green card. The home residency requirement doesn't go away by changing to a different non-immigrant visa category.