AOS and expired visa, help

[BrNv 2]

I have asked this before, but need either some reassurance or input as wife is crying. The situation is we married in U.S. while on tourist visa (from a nonwaiver country). The previous advice given (by several people) was any overstay before submitting paperwork will be excused, i.e. paperwork is being filed after visa expired. The reason (though probably not relevant) was we were waiting on all necessary paperwork to submit a complete application. We are now doing the paperwork and the I-485 instructions state that one is not eleigable for AOS if the authorized stay expired before the paperwork. We would appreciate feedback from anyone that knows the answer. Are we okay or not okay?

Edited April 2, 2011 by BrNv

[Inky 1,110]

Hope your doing all the I-130 paperwork too because you cant just send the 485 stuff!

[beppo 8]

I have asked this before, but need either some reassurance or input as wife is crying. The situation is we married in U.S. while on tourist visa (from a nonwaiver country). The previous advice given (by several people) was any overstay before submitting paperwork will be excused, i.e. paperwork is being filed after visa expired. The reason (though probably not relevant) was we were waiting on all necessary paperwork to submit a complete application. We are now doing the paperwork and the I-485 instructions state that one is not eleigable for AOS if the authorized stay expired before the paperwork. We would appreciate feedback from anyone that knows the answer. Are we okay or not okay?

I'm not an expert on people appyling for the AOS from a tourist visa. If it was me, I would go back to Turkey and go the correct procedure.

I know people in the past have come over to the US on a tourist visa, got married and AOS and they were succesfull, but now I think it's far more difficult to do so.

Good luck, I'm sure someone else can give a better answer.

[Little_My 463]

You are fine. Overstay is a problem for people who entered under the VWP program, though not a total deal breaker for those either. As long as the intending immigrant entered with a valid visa - which ever visa - overstay is forgiven after marriage to a USC.

Could you be more specific of the section of the I-485 instructions that you are referring to?

In any case - you are fine. As long as your marriage is legitimate and you can show proof of bona fide marriage, you shouldn't expect any problems. The only thing to keep in mind is that even though you technically can apply for a travel document (AP) and would be issued one, since you have overstayed you cannot leave US at all until you have the green card in your hands. (or your wife - whichever is the foreigner). So you really don't even need to apply for the AP, it won't be of any use to you.

Edited April 2, 2011 by Mrs.Finland-USA

[Kathryn41 3,205]

The 'exception' to the above rule is available only to spouses of US citizens.

The I-485 petition is used for people who are applying to adjust status from many different visas - work, study, and visitors - and based upon many different eligibility criteria, not just marriage. The statement about not being able to apply for AOS if you are out of status refers to situations other than marriage. As long as she is not in removal proceedings nor has been served with deportation papers, you shouldn't have a problem. Any out of status time is 'forgiven' when the AOS based upon marriage to a US citizen is approved, so go ahead and file.

If she had entered on the Visa Waiver Program and had overstayed her time, then it would be a hit or miss situation about whether the AOS would be denied or not. Some USCIS offices will still approve an overstayed VWP applicant, but many won't. Since she entered on a regular B-2 visa, she can apply to adjust her status through marriage to you. It is important that your wife does not leave the US until she receives her green card, though.

Good luck to you. Once the application is filed, your wife will again have 'status' in the US as a pending AOS applicant.

[Myopia 93]

Please tell your wife to stop crying! She will be A ok!

You have been given the same advice but there is no harm in giving the same again.

1. Any overstay that your wife has/could have will have no effect on her AOS application. None. Zero. Zip.

2. You can file for your wife in the USA because she is an immediate spouse of you. You being a US citizen.

3.Tell your wife to read the I-485 instructions again and look at part F.

4,Look at F again.

5. Give your wife a big hug and tell her she is F!

She is not going to have a problem because she married you or you filed.

Best of everything,

PS. I think we should keep information relevant to the thread as additional information may just confuse the OP and Mrs. OP (Going back to Turkey, Visa Waiver Overstay- If any one has any knowledge of USCIS offices that are denying VWP AOS other than SD..please post on my VWP thread)

Edited April 2, 2011 by Myopia

[BrNv 2]

You are fine. Overstay is a problem for people who entered under the VWP program, though not a total deal breaker for those either. As long as the intending immigrant entered with a valid visa - which ever visa - overstay is forgiven after marriage to a USC.

Could you be more specific of the section of the I-485 instructions that you are referring to?

In any case - you are fine. As long as your marriage is legitimate and you can show proof of bona fide marriage, you shouldn't expect any problems. The only thing to keep in mind is that even though you technically can apply for a travel document (AP) and would be issued one, since you have overstayed you cannot leave US at all until you have the green card in your hands. (or your wife - whichever is the foreigner). So you really don't even need to apply for the AP, it won't be of any use to you.

This is to everyone ... and thanks. Yes, we are doing the I-130 paperwork. On the instructions for I-485 (revised 1/18/11), page 2 paragraph 10 "Who Is Not Eligible to Adjust Status" Subparagraph D says "Your authorized stay expired before you filed this application."

[Myopia 93]

This is to everyone ... and thanks. Yes, we are doing the I-130 paperwork. On the instructions for I-485 (revised 1/18/11), page 2 paragraph 10 "Who Is Not Eligible to Adjust Status" Subparagraph D says "Your authorized stay expired before you filed this application."

You get the F. Seriously you do.

10. F to be precise.

Look at your instruction form on the I-485.

You Are Under F

[BrNv 2]

Please tell your wife to stop crying! She will be A ok!

You have been given the same advice but there is no harm in giving the same again.

1. Any overstay that your wife has/could have will have no effect on her AOS application. None. Zero. Zip.

2. You can file for your wife in the USA because she is an immediate spouse of you. You being a US citizen.

3.Tell your wife to read the I-485 instructions again and look at part F.

4,Look at F again.

5. Give your wife a big hug and tell her she is F!

She is not going to have a problem because she married you or you filed.

Best of everything,

PS. I think we should keep information relevant to the thread as additional information may just confuse the OP and Mrs. OP (Going back to Turkey, Visa Waiver Overstay- If any one has any knowledge of USCIS offices that are denying VWP AOS other than SD..please post on my VWP thread)

Being dense here with the terms of art ... so my understanding is failure to maintain nonimigrant status under para. 10(F) of the instructions means an overstay and not something else ... so 10(F)(1) kicks in and makes everything okay.

p.s. For general curiosity, we are less than 30 days past visa expiration.

Edited April 2, 2011 by BrNv

[Little_My 463]

The section of 245(i) adjustment is what makes the difference here.

An alien

who was inspected and admitted or paroled into the United States may be

adjusted by the Attorney General, in his discretion and under such

regulations as he may prescribe, to that of an alien lawfully admitted

for permanent residence if:

1. the alien makes an application for such adjustment,

2. the alien is eligible to receive an immigrant visa and is admissible

to the United States for permanent residence,

3. and an immigrant visa is immediately available to him at the time his

application is filed.

You married a US citizen, and therefore have an immigrant visa immediately available to you. Also, if you look at paragraph 10(F) in the )-485 instructions, you fall into the F(1) category.

You can so some searches here on VJ as well, you'll find a ton of people who are adjusting from visa overstay. How long is your overstay, btw? As long as you keep in mind that you cannot leave the US until you have that green card, you will most likely be just fine.

Edited April 2, 2011 by Mrs.Finland-USA

[BrNv 2]

The section of 245(i) adjustment is what makes the difference here.

An alien

who was inspected and admitted or paroled into the United States may be

adjusted by the Attorney General, in his discretion and under such

regulations as he may prescribe, to that of an alien lawfully admitted

for permanent residence if:

1. the alien makes an application for such adjustment,

2. the alien is eligible to receive an immigrant visa and is admissible

to the United States for permanent residence,

3. and an immigrant visa is immediately available to him at the time his

application is filed.

You married a US citizen, and therefore have an immigrant visa immediately available to you. Also, if you look at paragraph 10(F) in the )-485 instructions, you fall into the F(1) category.

You can so some searches here on VJ as well, you'll find a ton of people who are adjusting from visa overstay. How long is your overstay, btw? As long as you keep in mind that you cannot leave the US until you have that green card, you will most likely be just fine.

That is exactly what we were looking for ... the 245(i) exception. Thank you (and everyone) so much! Yes, we know about not leaving and the overstay is just under 4 weeks. But that info is always desired when trying to assist someone.

[Myopia 93]

Being dense here with the terms of art ... so my understanding is failure to maintain nonimigrant status under para. 10(F) of the instructions means an overstay and not something else ... so 10(F)(1) kicks in and makes everything okay.

p.s. For general curiosity, we are less than 30 days past visa expiration.

Basically yes. The 245(i) doesn't even matter for you. What matters is you are under 10 F 1 which is the pertinent part of the I-485 instructions.

Edited April 2, 2011 by Myopia

[Brother Hesekiel 2,235]

Send all of these forms concurrently: I-130, I-485, I-765, I-864, and G-325A.

Do not submit an I-131.

Hug your wife and tell her there's no reason to be worried. The AOS process and adjusting after visa overstay is day-in, day-out business for the USCIS folks. They won't raise an eyebrow, nor will they even bother to ask about it. It's a total non-issue.

[Mrstate 1]

I feel your wifes worry, I been worried, crying and all stressed out too thank goodness my husband makes me feel better and tells me it will be ok, anyways im an overstay too but on an h4 visa, my aunt has a same visa as ur wife and got out of status for awhile, but now she is a us citizen thru her husband, she will be ok

[Monday Jones 6]

That is exactly what we were looking for ... the 245(i) exception. Thank you (and everyone) so much! Yes, we know about not leaving and the overstay is just under 4 weeks. But that info is always desired when trying to assist someone.

My husband was 8-10 *years* out of status when I applied for him. At the interview, the IO didn't ask one question about it. My husband was approved right then and got his green card a few weeks later.