Overstay a few months while I-130 pending?

[duskywolf 0]

Hello friends, I had a few questions regarding my spouse possibly having to overstay while our I-130 is still waiting to be approved.

As our timeline shows, we filed in mid October of 2013, so we have a ways to go until we see anything approved.

My spouse will have to leave 25th of this month, this will be his second 90 day stay in the U.S on VWP. His last one ended August 5th 2013.

Unfortunately he has absolutely nowhere to go when he returns to the U.K. and will be essentially homeless upon return, and likely will continue to be homeless until everything is approved and he can get his GC. I will not be able to communicate with him at all, (no phone, no internet connection) On top of that I have severe borderline personality disorder and require his assistance on a daily basis. Does the USCIS care about any of this? Can the overstay be forgiven due to extenuating circumstances?

If he were to overstay 3-4 months, what would happen? I need to know what issues it might cause us. Our application is solid, the only concern I might have is us being denied at the consulate.

I really need some help with this. Thank you so much, visajourney friends!

[2ndMessiah 184]

You need to clarify what has happened.

Did your now spouse enter the US on VWP with the intent to stay? Having nowhere to return to live, I will also assume there is no job to return to either, would be a red flag indicating this is so. This can lead to all sorts of deportation proceedings and bans etc.

I assume you married in the US and filed the I-130. Why did you not concurrently file AOS at the same time.

On a slightly more upbeat note, If you have the NOA1, my understanding is that over stays will be "forgiven" and while the I-130 petition is being processed your spouse will be allowed to stay.

You might be able to fill out I-485 (AOS),enclose a copy of the I-130 NOA1 and concurrently file for work authorization and AP (Free with AOS).

[duskywolf 0]

You need to clarify what has happened.

Did your now spouse enter the US on VWP with the intent to stay? Having nowhere to return to live, I will also assume there is no job to return to either, would be a red flag indicating this is so. This can lead to all sorts of deportation proceedings and bans etc.

I assume you married in the US and filed the I-130. Why did you not concurrently file AOS at the same time.

On a slightly more upbeat note, If you have the NOA1, my understanding is that over stays will be "forgiven" and while the I-130 petition is being processed your spouse will be allowed to stay.

You might be able to fill out I-485 (AOS),enclose a copy of the I-130 NOA1 and concurrently file for work authorization and AP (Free with AOS).

Thanks for your quick reply! Let me fill in the details.

He entered on the VWP with no intent to stay. We married when he was on his first 90 day visit. He left for 4 months, and has returned for another 90 day as a visit. He doesn't have a job to return to, he had to quit his part time job to come visit me recently. We didn't file the AOS when we got married because of the horrible stories of the AOS being denied and people being banned for 10 years, etc. We have recieved our NOA1 before he even came to visit the 2nd time. We are just waiting for the I-130 to be approved. We are about 3 1/2 months in since we filed.

Should we go ahead with the AOS? I don't want it to be denied and complicate things further.

[NikLR 13,220]

The OP's spouse is going to try to enter the USA on the 25th. Good luck, honestly. I suggest he get a new job in the UK and someplace to stay asap.

When asked how long he is going to stay and he says "OH about 7 or 8 months because I have no where to live in the UK I thought I'd stay in the USA until my interview" because that would be the truth, they will turn him around. IMHO Lying isn't an option because they can easily ban him from the USA for misrepresentation.

[NikLR 13,220]

He cannot enter the USA with the intent to immigrate. A 10 year ban only occurs after 1 year of overstay.

for more info read this:

Persons who have accumulated 180 days or more of unlawful presence after April 1, 1997, and have then left the country, cannot return to the U.S. for 3 years. Persons who have accumulated one year or more of unlawful presence after April 1, 1997, and have then left the country, cannot return to the U.S. for 10 years. Persons who illegally return to the U.S. without seeking a waiver must wait outside the U.S. for a period of 10 years before they can apply for a waiver. The same rule applies to persons who illegally reenter the U.S. after being deported.

Persons who commit fraud or a material misrepresentation are barred from the U.S. for life unless they obtain a waiver.

A waiver may be obtained by submitting Form I-601 to the USCIS and demonstrating that the persons U.S. citizen or permanent resident spouse or parent(s) would suffer extreme hardship unless the person was granted a waiver.

[duskywolf 0]

The OP's spouse is going to try to enter the USA on the 25th. Good luck, honestly. I suggest he get a new job in the UK and someplace to stay asap.

When asked how long he is going to stay and he says "OH about 7 or 8 months because I have no where to live in the UK I thought I'd stay in the USA until my interview" because that would be the truth, they will turn him around. IMHO Lying isn't an option because they can easily ban him from the USA for misrepresentation.

He's leaving on the 25th, not arriving.

[NikLR 13,220]

If he is there right now, and has no place to live, AOS.

[quitepainful 56]

NLR, intent is overcome as long as there are no negative factors. If OP is a US citizen, and spouse is immediate relaitive (in this case husband/wife), as long as there are no negative factors, its fine. This has been upheld by the supreme court and is case law...

dont scare the OP into the whole 10 year ban...

intent AND negative factors have to both be present to be denied if USC + Spouse...

http://www.justice.gov/eoir/vll/intdec/vol17/2750.pdf

[quitepainful 56]

Intent alone cannot deny AOS... and if it does, it will not be upheld... of course if you are a drug dealer back in your home country, or have committed crimes, etc. then those are considered negatgive factors and you will be denied. just make sure you consult the right attny, and they will guide you...

everyone on this site cries wolf with the word AOS is brough up...

[Ryan H 3,795]

OP, please clear this up, is your spouse currently in the US? From reading the different posts here, I can't tell which is which.

[duskywolf 0]

OP, please clear this up, is your spouse currently in the US? From reading the different posts here, I can't tell which is which.

Yes, my spouse is currently with me in the US

[NikLR 13,220]

Quitepainful I was telling the OP there would be NO 10 year ban for an overstay of 4 months. It wouldn't even qualify for a 3 year ban.

There is no intent right now anyhow, the OP's spouse is in the USA, I thought he was out of it initially. I am being honest and true when I say you cannot come to the USA with the intent to immigrate because it is illegal. That is the legality of it period and it is against the VJ TOS to suggest otherwise. If the spouse is already here and has no home to go back to, then AOS. While I think AOS should be abolished except for visas intended for that purpose, I never have claimed that someone cannot AOS from within the USA if you entered truthfully. Lying will always catch up with you.

[dancematic66 2]

How can the AOS be filed before the NOA2 is granted?

I thought the AOS was submitted at the NVC stage?

[nightingalejules 678]

How can the AOS be filed before the NOA2 is granted?

I thought the AOS was submitted at the NVC stage?

Different thing, same acronym. The AOS you're talking about is the Affidavit of Support, which, yes, is submitted at NVC stage with a stand alone i-130. The kind of AOS they're talking about in this thread is the Adjustment of Status (which, essentially, converts a different kind of visa (in this case a tourist visa) into an immigrant visa.

It's a bit confusing, just because the initials are the same, but it's a totally different thing. And then to make it even more complicated, you still need to submit an AOS (affidavit of support) for an AOS (adjustment of status). EEP!

[dancematic66 2]

Understood!

So by filing for an adjustment of status would the beneficiary be able to stay in the US for longer than the 90 day VWP limit?

Is this only granted for exceptional circumstances?