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oka88

married to a US citizen but i overstayed my visa

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i read a similar thread right below this. i entered the United States in 2001 from Nigeria with a visiting visa, i was 13 at the time. my sister who was a citizen filed an i-130 petition on my behalf on september 2001. since i was still a kid, my family didnt feel it was necessary for me to go back home, instead i was enrolled in school (done with grad school, trying to get into a med school) and my 1-94 expired. The i-130 my sister filed was approved (i recieved the i-797 notice in august 2009) but because i am in the states and i have overstayed, im not eligible to adjust my status, ill have to leave the country. i met my wife back in 2007 at a breast cancer walk, since then we've been dating up till june last year when we got engaged and got married this april. my question is, she wants to file for me. does it matter that i already have a case pending?

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Hello, your case is just like my husband's. He entered on F1 visa, his sister filed I-130 for him in 2001, approved in 2009 but ineligible to adjust status due to overstay. Weird reading that! :) We successfully adjusted in March this year. I had the same worry as you that his sister's petition would affect us. It had nothing to do with it. You did not receive an NTA (notice to appear) did you? Or other documentation about deporting correct? Please let me know if you have any questions!


02/21/99 Hubby entered with F1 student visa D/S

May 2002 He stopped attending school because he couldn't afford it any longer.

03?/2002 USC sibling I-130 petition

02/2009 Met hubby

08/2009 Sibling petition approved but ineligible to adjust status due to overstay

07/10 Married :)

11/22/10 [day 0]- mailed AOS packet!! should be there by noon 11/23/2010

12/3/10 [day 11]- received email/text notification of acceptance from USCIS

12/3/10 hubby surprised me with a trip to Los Angeles for my birthday...no problems :)

12/6/10 [day 14]- received hard copy NOA1 in mail

12/7/10 [day 15]- checks cashed...ouch

12/15/10 [day 23]- rec'd biometrics appt set for Dec. 28th at 10 am! :)

12/28/10 [day 36]- successful biometrics appt

01/27/11 [day 66]- rec'd interview appt set for March 10th at 10 am :)

02/25/11 [day 95]- rec'd EAD

03/10/11 [day 109]- Interview, Green card approved!! :)

Next Step: Removing conditions in 2 years.

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It is find to have 2 visas at the same time. Your marriage based one will probably be the faster of the 2 as it sounds like you have a 10 year ban for your overstay and siblings aren't able to provide the proof of hardship that a spouse can .


This will not be over quickly. You will not enjoy this.

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Since you entered the country legally, you are allowed to apply to adjust your status through your marriage to a US citizen even though your status is expired. DO NOT LEAVE the US until you get your green card! If you do, you will incur an automatic 10 year ban - it will not kick in unless you leave the US, so as long as you remain in the US you will be fine. Once you file for the I-485 your status will again become legal pending a decision on the I-485. Do not bother to file for the I-131 Advance Parol/Travel Documents. USCIS will grant it, but you would still incur the 10 year ban if you left the country and that would negate the I-131 parole, so you can't use it even if you have it.

Since there is no visa number yet available for your sister's I-130 petition for you, your wife's I-130 and the I-485 will probably be approved before a visa became available through your sister. You would have to leave the US to take advantage of the visa from your sister's approved I-130 petition and then that would incur the 10 year ban so you would not be able to take advantage of that visa after all. You do not need to leave the US to take advantage of your wife's I-130 petition. That is an exception to the process. The spouse of a US citizen is allowed to adjust status from within the US even if they are out of status when they apply, as long as they entered legally.

Remember - DO NOT LEAVE the US - you do not have the ban until you leave and you don't need to incur the ban to take advantage of your wife's filing of the I-130 petition for you.

Good luck.


“...Isn't it splendid to think of all the things there are to find out about? It just makes me feel glad to be alive--it's such an interesting world. It wouldn't be half so interesting if we knew all about everything, would it? There'd be no scope for imagination then, would there?”

. Lucy Maude Montgomery, Anne of Green Gables

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Another Member of the VJ Fluffy Kitty Posse!

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Kathryn41 is right. Being petitioned by a US citizen spouse will get you a GC faster. The moment that you were married to a citizen, your overstay have been forgiven. That is what happened in my case. I imagine you must be losing your mind for worrying about your overstay. Be patient, stay positive and remember not take international trips. Good luck! :thumbs:

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Kathryn41 is right. Being petitioned by a US citizen spouse will get you a GC faster. The moment that you were married to a citizen, your overstay have been forgiven. That is what happened in my case. I imagine you must be losing your mind for worrying about your overstay. Be patient, stay positive and remember not take international trips. Good luck! :thumbs:

I hope nobody takes the bolded statement above literally. Marrying a US citizen doesn't change your immigration status in any way. It only makes you eligible to apply to have your status changed. If the application is denied then the overstay will still exist, even though you're the spouse of a US citizen. If it's approved then the overstay isn't really "forgiven". It just becomes irrelevant.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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I hope nobody takes the bolded statement above literally. Marrying a US citizen doesn't change your immigration status in any way. It only makes you eligible to apply to have your status changed. If the application is denied then the overstay will still exist, even though you're the spouse of a US citizen. If it's approved then the overstay isn't really "forgiven". It just becomes irrelevant.

First of all, I did not say that marrying a us citizen will change your status. Second, yes the overstay is 'forgiven', that is the word used by my lawyer. I did not say that this always happen in every case, I did mention though that my overstay was forgiven IN MY CASE. I was not even asked about it during our interview. Of course they will always know about the overstay. If married to a us citizen, the overstay will be irrelevant BECAUSE it is forgiven.

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We had an interview this morning in Immigration to check if all my documentation is in order to go for a short trip to Bolivia (I have received already my GC). My husband asked him she won't have any problem coming back, because she overstayed? and the IO said exactly: "it has been forgiven".

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I think the reason why many members here cringe at the word "forgiven" is because the overstay does not really disappear after a person adjusts his/her status due to marriage to a USC. It does not prevent adjusting status or becoming a permanent resident, so in that sense, yes - USCIS, at that moment, forgives the intending immigrant for overstaying their previous non-immigrant visa. It's not erased from that individual's record though, and I remember vaguely reading of a case where an LPR lost his GC due to being abroad for too long without applying for a re-entry permit, and after that was subject to a 10 year ban because before becoming an LPR, he had overstayed his previous visa status by over a year, and that overstay and the ban related to it came back into force once his permanent resident status was revoked. Maybe an urban legend - but maybe not.


Adjustment of Status from F-1 to Legal Permanent Resident

02/11/2011 Married at Manhattan City Hall

03/03/2011 - Day 0 - AOS -package mailed to Chicago Lockbox

03/04/2011 - Day 1 - AOS -package signed for at USCIS

03/09/2011 - Day 6 - E-mail notification received for all petitions

03/10/2011 - Day 7 - Checks cashed

03/11/2011 - Day 8 - NOA 1 received for all 4 forms

03/21/2011 - Day 18 - Biometrics letter received, biometrics scheduled for 04/14/2011

03/31/2011 - Day 28 - Successful walk-in biometrics done

05/12/2011 - Day 70 - EAD Arrived, issued on 05/02

06/14/2011 - Day 103 - E-mail notice: Interview letter mailed, interview scheduled for July 20th

07/20/2011 - Day 139 - Interview at Federal Plaza USCIS location

07/22/2011 - Day 141 - E-mail approval notice received (Card production)

07/27/2011 - Day 146 - 2nd Card Production Email received

07/28/2011 - Day 147 - Post-Decision Activity Email from USCIS

08/04/2011 - Day 154 - Husband returns home from abroad; Welcome Letter and GC have arrived in the mail

("Resident since" date on the GC is 07/20/2011

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Agreed with what Little_My said. Also, the previous poster said that overstay was forgiven at the moment of marriage - not true at ALL. Overstay is "forgiven"/irrelevant/overlooked/whatever at the moment of green card APPROVAL.


OUR TIMELINE

I am the USC, husband is adjusting from B2.

ADJUSTMENT OF STATUS

08.06.2010 - Sent off I-485
08.25.2010 - NOA hard copies received (x4), case status available online: 765, 131, 130.
10.15.2010 - RFE received: need 2 additional photos for AP.
10.18.2010 - RFE response sent certified mail
10.21.2010 - Service request placed for biometrics
10.25.2010 - RFE received per USCIS
10.26.2010 - Text/email received - AP approved!
10.28.2010 - Biometrics appointment received, dated 10/22 - set for 11/19 @ 3:00 PM
11.01.2010 - Successful biometrics walk-in @ 9:45 AM; EAD card sent for production text/email @ 2:47 PM! I-485 case status now available online.
11.04.2010 - Text/Email (2nd) - EAD card sent for production
11.08.2010 - Text/Email (3rd) - EAD approved
11.10.2010 - EAD received
12.11.2010 - Interview letter received - 01.13.11
01.13.2011 - Interview - no decision on the spot
01.24.2011 - Approved! Card production ordered!

REMOVAL OF CONDITIONS

11.02.2012 - Mailed I-751 packet to VSC
11.08.2012 - Checks cashed
11.10.2012 - NOA1 received, dated 11.06.2012
11.17.2012 - Biometrics letter received for 12.05.2012
11.23.2012 - Successful early biometrics walk-in

05.03.2013 - Approved! Card production ordered!

CITIZENSHIP

Filing in November 2013

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Many people use the word forgiven in this context because it's easier to grasp for foreigners who are new to the whole immigration stuff and perhaps not as versed in the English language. The correct terminology in regard to overstay is "not being made an issue of" as the unlawful presence (replaces "overstay" as the correct term) alone is not being used to deny a petition for adjustment of status.

Neither God nor Uncle Sam forgives anything. We are all responsible for our own actions on more than one level.


There is no room in this country for hyphenated Americanism. When I refer to hyphenated Americans, I do not refer to naturalized Americans. Some of the very best Americans I have ever known were naturalized Americans, Americans born abroad. But a hyphenated American is not an American at all . . . . The one absolutely certain way of bringing this nation to ruin, of preventing all possibility of its continuing to be a nation at all, would be to permit it to become a tangle of squabbling nationalities, an intricate knot of German-Americans, Irish-Americans, English-Americans, French-Americans, Scandinavian-Americans or Italian-Americans, each preserving its separate nationality, each at heart feeling more sympathy with Europeans of that nationality, than with the other citizens of the American Republic . . . . There is no such thing as a hyphenated American who is a good American. The only man who is a good American is the man who is an American and nothing else.

President Teddy Roosevelt on Columbus Day 1915

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