AoS from B2 Visa after marriage and F-1 expiration

[brutus 0]

Hello,

I met my wife in college two years ago, we were both engineering students at the time. I am a naturalized citizen, and my wife was a student on an F-1 visa. We got a lease together 9 months ago, and have lived together ever since. We got married this December on the day before our graduation; this was also the same day that her F-1 visa expired. We planned to file the I-130 petition along with the I-485 Adjustment this January, while she was within the 60 day grace period. Unfortunately, we had to wait for our income tax to afford the filing fees, and her status changed to "F-1 overstay." To make matters more complicated, she had to go to Mexico last week for a family emergency. She still had a valid B-2 visa which she used to return to the United States. We live in El Paso TX, so she did not receive an I-94 on her return (it is not necessary if you do not leave El Paso, there is still another checkpoint outside of the city limits).

It is my understanding that she can no longer file as "F-1 overstay" and must now file as "B-2 overstay". Am I correct? If so, what do I put down for the I-94# on the I-130 and the I-485?

Also, I have read a few forums, and it seems many people assume that applying for an adjustment of status after a B-2 overstay amounts to fraudulent intent to immigrate. I believe this is not the case for us, because we got married while she was still valid in the United States on the day of her F-1 visa expiration. Should I be worried about any extra scrutiny from ISCIS?

To make matters oven more complicated, I just got offered a high paying engineering job in Houston, so I will have to leave in 3 weeks and we will no longer be able to live in the same city until she is granted the adjustment. Would it be better for her to return to Mexico and file the I-130 petition by itself, or should she remain in El Paso and do the adjustment? Which would be faster and more wise?

Thank you very much for your help.

Tony

[99jjeerwerc 1]

Hello,

I met my wife in college two years ago, we were both engineering students at the time. I am a naturalized citizen, and my wife was a student on an F-1 visa. We got a lease together 9 months ago, and have lived together ever since. We got married this December on the day before our graduation; this was also the same day that her F-1 visa expired. We planned to file the I-130 petition along with the I-485 Adjustment this January, while she was within the 60 day grace period. Unfortunately, we had to wait for our income tax to afford the filing fees, and her status changed to "F-1 overstay." To make matters more complicated, she had to go to Mexico last week for a family emergency. She still had a valid B-2 visa which she used to return to the United States. We live in El Paso TX, so she did not receive an I-94 on her return (it is not necessary if you do not leave El Paso, there is still another checkpoint outside of the city limits).

It is my understanding that she can no longer file as "F-1 overstay" and must now file as "B-2 overstay". Am I correct? If so, what do I put down for the I-94# on the I-130 and the I-485?

Also, I have read a few forums, and it seems many people assume that applying for an adjustment of status after a B-2 overstay amounts to fraudulent intent to immigrate. I believe this is not the case for us, because we got married while she was still valid in the United States on the day of her F-1 visa expiration. Should I be worried about any extra scrutiny from ISCIS?

To make matters oven more complicated, I just got offered a high paying engineering job in Houston, so I will have to leave in 3 weeks and we will no longer be able to live in the same city until she is granted the adjustment. Would it be better for her to return to Mexico and file the I-130 petition by itself, or should she remain in El Paso and do the adjustment? Which would be faster and more wise?

Thank you very much for your help.

Tony

Is the b2 expired? If it has expired then you should put OOS which means out of status. If she came with a valid visa and then overstay, it doesn't mean she still has the visitor status. She lost it when she decided to stay past the expiration date.

The thing about adjusting from a B2 (or OOS) is that the officer will perceive it as fraud because she entered the country with the intent to immigrate and not to leave the country when her visa expired. So you can expect a lot of questions about this.

[belinda63 3,038]

Big issue, you married, she left the country, she returned, now you file to adjust status. If asked how are you going to show she did not enter with the intent to immigrate? Intent is not enough to deny the green card but expect some serious questions and perhaps a lecture or maybe it won't even be mentioned.

[ceadsearc 516]

It sounds like when your wife entered on a B-2 she was planning to stay and adjust status which is fraud and illegal. Adjusting on a B-2 (or an F-1) must be done without intent, ie when circumstances change. Even if her F-1 had still been valid it would have been fraud had she left and returned INTENDING to adjust, though chances are after several years on an F-1 the scrutiny would have been less. Entering on a B-2 when already married and immediately adjusting status will definitely look suspicious. However, intent alone is not used to deny.

Your safest way is to file for the CR-1 visa and for her to return home before she overstays her B-2. If she just came back last week it doesn't sound like she has overstayed yet. She could continue to visit you using the b-2 as long as it is valid and she follows the regulations of it. She would have her spousal visa in 6-8 months and enter the US as an LPR. Living apart would not lead to additional scrutiny as obviously that is to be expected when filing from abroad.

[S_R 148]

Hello,

I met my wife in college two years ago, we were both engineering students at the time. I am a naturalized citizen, and my wife was a student on an F-1 visa. We got a lease together 9 months ago, and have lived together ever since. We got married this December on the day before our graduation; this was also the same day that her F-1 visa expired. We planned to file the I-130 petition along with the I-485 Adjustment this January, while she was within the 60 day grace period. Unfortunately, we had to wait for our income tax to afford the filing fees, and her status changed to "F-1 overstay." To make matters more complicated, she had to go to Mexico last week for a family emergency. She still had a valid B-2 visa which she used to return to the United States. We live in El Paso TX, so she did not receive an I-94 on her return (it is not necessary if you do not leave El Paso, there is still another checkpoint outside of the city limits).

It is my understanding that she can no longer file as "F-1 overstay" and must now file as "B-2 overstay". Am I correct? If so, what do I put down for the I-94# on the I-130 and the I-485?

Also, I have read a few forums, and it seems many people assume that applying for an adjustment of status after a B-2 overstay amounts to fraudulent intent to immigrate. I believe this is not the case for us, because we got married while she was still valid in the United States on the day of her F-1 visa expiration. Should I be worried about any extra scrutiny from ISCIS?

To make matters oven more complicated, I just got offered a high paying engineering job in Houston, so I will have to leave in 3 weeks and we will no longer be able to live in the same city until she is granted the adjustment. Would it be better for her to return to Mexico and file the I-130 petition by itself, or should she remain in El Paso and do the adjustment? Which would be faster and more wise?

Thank you very much for your help.

Tony

Its a tricky one...you may decide to take the risk and continue the process or have her do it back home. Wish you guys all the best...

[brutus 0]

Thank you very much guys. It is a complicated situation indeed. I would hate for her to return to the world's most violent city while I start a new career a thousand miles away.

My wife and I are going to seek legal counsel today, and I will keep you posted.

Edited February 14, 2012 by brutus

[YupYup 4]

she should have not left the country after you guys got married. now, she entered with a visitor visa and the intent to stay (filling AOS), which is immigration fraud. you have to file a CR-1 visa and she must return to her home country. I really dont see another way to do it, the immigration officer, who will review your paperwork, will catch on to that really fast.