how would a VWP overstay affect pending CR-1 application

[healthteacher 18]

We are sending in a I-130 petition for a CR-1 visa. My spouse wants to visit on the VWP and stay the maximum allowed time while waiting for the CR-1 process. Just curious, if a person wound up having an overstay while on the VWP while waiting for their CR-1,how would this affect their pending CR-1 application? Would the petition automatically be denied? I need to make sure we both understand the risks of an overstay in this situation to make sure it doesn't happen!. Thanks!

[chrisclassic 14]

there are risks indeed to any overstay

are you leaving the usa or staying there during your process ?

[Hypnos 6,579]

If you have at least 180 days of overstay then you any visa you applied for would be denied. You would then need to apply for an I-601 waiver of inadmissibility for an immigrant visa, or wait three years (if 180 days of overstay) or ten years (if 365 days of overstay).

Edited June 15, 2013 by Hypnos

[healthteacher 18]

Since the CR-1 process is so long we may have to go back and forth until it is completed.

However the information I'm getting here seems to imply that an overstay of less than 180 days may not affect a pending CR-1 application, and also that overstays are sometimes forgiven if the overstayer is married to a US citizen.

[Hypnos 6,579]

Overstay is not a barrier to someone who adjusts status in-country, but you are seeking an immigrant visa.

[NikLR 13,234]

*** moved from progress reports to process and procedures ***

[ShirahBet 42]

Overstays aren't forgiven because the person is married to a USC. If that were the case, my husband would have his visa today. Just be careful. One or two days over shouldn't be a problem, but if it happens consistently, you run the risk of having your spouse denied at a port of entry on the vwp. Not worth the risk, in my humble opinion.

[Asia 2,499]

Since the CR-1 process is so long we may have to go back and forth until it is completed.

However the information I'm getting here seems to imply that an overstay of less than 180 days may not affect a pending CR-1 application, and also that overstays are sometimes forgiven if the overstayer is married to a US citizen.

But remember that overstaying even for one day disqualifies your spouse for using VWP again. Even if it doesn't hurt your CR-1 process.

Overstays are 'forgiven' (even the years long), but only when you don't leave the US till you have a GC in your hands. If you leave, you trigger the ban anyway.

[ShirahBet 42]

But remember that overstaying even for one day disqualifies your spouse for using VWP again. Even if it doesn't hurt your CR-1 process.

Overstays are 'forgiven' (even the years long), but only when you don't leave the US till you have a GC in your hands. If you leave, you trigger the ban anyway.

They actually aren't forgiven, you have to go through a waiver and prove extreme hardship, even when the person still is in the country before they can get a green card.

[Hypnos 6,579]

If seeking an immigrant visa then that is the case; if seeking adjustment of status then it is not.

[healthteacher 18]

If seeking an immigrant visa then that is the case; if seeking adjustment of status then it is not.

Hypnos- Could you explain what you meant here? Thanks!

[Hypnos 6,579]

Any overstay for immediate relatives of a US citizen who adjust status in-country is not penalised at adjudication, you just have to prove that you entered the country legally in the first place. If you have twenty days or twenty years of overstay it makes no difference, and will not stop you from filing for AoS.

With an immigrant visa there is no such consideration, and if you have reached the 180 day or 365 day thresholds (for the three and ten year bars from the US) then your overstay will be a problem, for which you would need to try and obtain a waiver through filing an I-601 to attempt to overcome.

[JFH 12,195]

I am not going to risk an overstay. It is what it is. We all have to go through the process and we all want to be with our husbands and wives and we all have to wait.

Why bother overstaying? She can stay 90 days on a VWP and then go home/elsewhere for a few days and come back for another 90 days. The question is not whether overstays are "forgiven" or not but why you would want to break the rules of the country you are requesting residency in. Why start off on a bad foot?

[The Mean Lady 604]

I am not going to risk an overstay. It is what it is. We all have to go through the process and we all want to be with our husbands and wives and we all have to wait.

Why bother overstaying? She can stay 90 days on a VWP and then go home/elsewhere for a few days and come back for another 90 days. The question is not whether overstays are "forgiven" or not but why you would want to break the rules of the country you are requesting residency in. Why start off on a bad foot?

Keep in mind, if the US sees you keep coming in for 90 days over and over, you're probably going to end up getting denied in the end because it's clear you have no ties to your country.

[JFH 12,195]

Keep in mind, if the US sees you keep coming in for 90 days over and over, you're probably going to end up getting denied in the end because it's clear you have no ties to your country.

How many times during a CR-1 process do you think I am going to "keep coming in"? The whole process is around 8 months. They'd be right in thinking I have no ties to my home country - my husband (as he will be by then) is in the US!!! I have no children and my family (as in parents and siblings) live overseas. I live alone here.

I'm not talking about going back and forth every 90 days for a 10-year period.