Adjustment of status after tourist visa expires okay?

[Mark Robert 0]

Hello, and thanks in advance.

My German girlfriend's tourist visa will expire in one week and we want to marry quickly and have her stay (my cold feet thawed). No issue of visa fraud, we did not plan this when she came. I am taking a crash course in the forms (I-130, I-485, etc., etc.) to be filed concurrently, but doubt we'll have it all postmarked before the visa expires.

Is this a problem?

If we want to do everything legal, is the important point that we get everything in the mail, certified with date, *before* the date stamped on her passport? (BTW we have no copy of an I-94, didn't receive one when she legally entered as a tourist almost 3 months ago, but she does have a date stamp).

What risk do we incur if we don't get all this paperwork in for a couple weeks after her tourist visa expires? In that instance, she'd be married to a U.S. citizen, but her visa would have expired. I have read two opposite views on this in this forum, one that it is "no problem,"; the other that she risks deportation. Big difference! Anybody super clear on this? Please help!

[Harpa Timsah 13,258]

Not a problem. Being married doesn't protect her but a pending AOS does, so a few days in between won't be a problem.

Understand that she didn't enter on a tourist visa, she entered on the Visa Waiver Program.

[Mark Robert 0]

Thanks for the answer. If I follow it correctly, it IS important to get the I-130 in the mail ASAP after the marriage, right? Simply getting married is not enough to prevent deportation or put us in a relaxed state with the paperwork.

My guess is there's no USCIS documented window, correct? For example, the USCIS doesn't say it's okay if you file the I-130 within 30/60/90/whatever days of the marriage.

But the facts on the ground are that, if I can get in the paperwork within a reasonable time after the date on her passport (2 weeks?), that we stand about zero chance of problems? Like, tiny risk, but negligible?

[Harpa Timsah 13,258]

The I-130 does not protect your status. The I-485 provides the alien with a period of authorized stay while it is pending.

Overstay is not a bar to successfully adjusting status as the spouse of a USC. You can file 20 years later if you want.

Once her VWP 90 days expires, she is overstaying and subject to deportation. That is unrelated to the fact that she knows you and you are planning to file AOS. The gov wouldn't provide guidelines on unrelated things. She doesn't get extra grace time or anything. Completely unrelated.

Getting someone deported costs a lot of money and takes time. It is unlikely that she would get caught and deported, but it's possible. Hopefully that's incentive to work on the paperwork and get it sent off quickly.

[Mark Robert 0]

Thanks a lot! Your answer is very clear, and it IS good incentive to get all the paperwork in quickly. One more question: Once we get to the end of the process and she has permanent residence, would there remain some type of negative mark on her record for having once overstayed her VWP 90 day limit by a week or two?

There may be a chance to get it all in before her Visa ends, but I need to balance that with taking enough time to be sure to do it all correctly.

[ValerieA 350]

Technically, if she moved to another country before she got citizenship (abandoning her green card), it could cause problems if she tried to re-enter the US - she would not be able to use VWP again, she would have to get a tourist visa. Again, this is only if she made a permanent move to another country and thus had to give up her permanent resident status here.

[Harpa Timsah 13,258]

Once she has her Greencard (permanent residence) the overstay time will be "forgiven" or "erased" or however you want to think of it. It will not be a black mark.

I suppose though, if in some years she leaves the US and gives up her residency, then she cannot use the VWP again because she overstayed it. If you overstay the VWP by one day then you can never use it again. She would need a real visa to come visit. If she stays in the US or becomes a citizen before leaving then it won't matter.

Edit: Valerie, I call jinx!

Edited May 28, 2013 by Harpa Timsah

[Mark Robert 0]

And so to follow up: Is it the date that the I-485 is certified mailed (concurrently with the I-130) that tells the USCIS whether the VWP has been overstayed? If so, I think I might be able to make that -- and will if I can! Because we may find ourselves living in Germany some day and I don't want to cause trouble for her coming back here.

But if it's the date that the I-485 is received/processed/whatever, I don't see how in the world I could make that, given that I've got 5 days! And then maybe we should consider K-1/K-3 instead.

Then again, having to get a tourist visa rather than VWP....maybe that's not such a big deal after all?

Edit: AND, you guys are awesome, thanks!

Edited May 28, 2013 by Mark Robert

[Harpa Timsah 13,258]

It will be the day that they cash the check and issue the receipt, not the day it arrives in the mailbox.

I don't think getting a tourist visa in the distant future is that big a deal, personally. Especially if she would give up her GC to move away, that would show something.

She could get US Citizenship in 3years or so if you stay married, at which point it wouldn't be an issue. If she is German then she needs special permission to obtain another citizenship, called the BBG. There is some sort of group called "zwei passe" online that offers advice on that, when you get to that point in years.

[ddkorestin 10]

my honest advice is just wait and apply altogether. concurrently

[ValerieA 350]

Edit: Valerie, I call jinx!

It's about time I beat you to an answer!

[Dawnnette 1]

My husband reentered the country for the 4th or 5th time on 11-1-11 on a tourist visa. He first came here as a child. we got married 4-4-12. His tourist visa expired on 4-30. We were not able to file until 2-15-13. Our interview was 05-29 and they approved his AOS on 5-31. Before we filed my cousin got in trouble and i had to talk with the secret service. They knew we had not applied yet and we did not have an issues. I am in no way suggesting that someone cant be deported but i believe if your spouse isn't doing anything against the law a few days will be alright.

As a side note, the only thing a lawyer we talked to told us was because we did not apply for the AOS prior to his visa expiring,that he could not leave the US until after he received his gc or he would be subject to a ban.

Edited June 2, 2013 by Dawnnette

[Tradewind 6]

My wife entered the country USA on June 22 and we are planning a camping trip to 7 National parks in August. Several weeks ago we decided it might be time for her to immigrate to the US. I was going to file the petition in a few weeks (end of August) from now and we would go thru the normal CR1-IR1 process with interview in Bogota. She would leave the country and I would establish domicile here. Today we decided to investigate the AOS option from a B1/B2 to AOS. Her I-94 expires around Jan 20, 2014. I am thinking to file the I-130 and I-485 concurrently while she is still here. Any advise you can give me would be appreciated. She would stay here while the process was ongoing if it is permissible. Our intent when we came here was for a vacation and camping, the same thing we did last summer. We did not come here intending to immigrate.

My wife has 3 1/2 years left on her B1/B2.

Edited July 30, 2013 by Tradewind