How to do adjustment of status for out of status International student?

[Colinana 1]

Hello everyone,

I'm new to this forum so please bare with me as I explain my situation.

My boyfriend entered the US as an international student. During his last year of school, he met me. He was supposed to leave the US 3 years ago but due to my medical condition, I needed him to stay to take care of me. That results in him being out of status for 3 years now.

 

We just now decided to get married but I don't know how would go when he has been out of status for so long. Will he be able to do adjustment of status? Will he need to leave the US? Until now, I still need him to stay with me because my health condition can get worse anytime. In that case, can we fill out the waiver form? 

[Crazy Cat 41,981]

There is no wavier needed.  Overstay is forgiven for spouses of US citizens.  But until you are married AND he files for Adjustment of status, he can be detained and deported.......

[Jojo92122 1,924]

1 minute ago, missileman said:

There is no wavier needed.  Overstay is forgiven for spouses of US citizens.  But until you are married AND he files for Adjustment of status, he can be detained and deported.......

Overstay are not forgiven for spouses of US citizens.  We've been saying that for years on VJ for simplicity.  Overstays have been ignored by past administrations.  That may no longer be true under Trump.  Look at overstays for international students.  

[Crazy Cat 41,981]

1 minute ago, Jojo92122 said:

Overstay are not forgiven for spouses of US citizens.  We've been saying that for years on VJ for simplicity.  Overstays have been ignored by past administrations.  That may no longer be true under Trump.  Look at overstays for international students.  

I have seen nothing to think that it has changed....yet.

[Colinana 1]

Just now, Jojo92122 said:

Overstay are not forgiven for spouses of US citizens.  We've been saying that for years on VJ for simplicity.  Overstays have been ignored by past administrations.  That may no longer be true under Trump.  Look at overstays for international students.  

So he does need a waiver? I heard that under Trump, it will be much harder. Since he's overstayed for so long, will it be possible to adjust his status after we get married? I couldn't get married sooner due to my medical issues and financial issues as well. But now, we're stable and possibly have a chance to open a business and purchase a house. So I think it's a good time to get married and settle down. We also plan to have kids in near future. Do you think if I explain my medical issues in the waiver including all my medical records and the reason why I need him to stay here, then he can stay here while waiting for the paperwork to be approved?

[Jojo92122 1,924]

6 minutes ago, missileman said:

I have seen nothing to think that it has changed....yet.

Where's the regulations that states overstays are forgiven for spouses of US citizens?

[Crazy Cat 41,981]

4 minutes ago, Jojo92122 said:

Where's the regulations that states overstays are forgiven for spouses of US citizens?

Have you seen a single case where AOS was denied for overstay?  I haven't.

 

@geowrian  Have you seen any?

Edited July 12, 2018 by missileman

[Crazy Cat 41,981]

12 minutes ago, Colinana said:

So he does need a waiver? I heard that under Trump, it will be much harder. Since he's overstayed for so long, will it be possible to adjust his status after we get married? I couldn't get married sooner due to my medical issues and financial issues as well. But now, we're stable and possibly have a chance to open a business and purchase a house. So I think it's a good time to get married and settle down. We also plan to have kids in near future. Do you think if I explain my medical issues in the waiver including all my medical records and the reason why I need him to stay here, then he can stay here while waiting for the paperwork to be approved?

Whether you have a medical condition or not is not justification for his overstay........I wouldn't even try that story...He is not stable if he is in the country unlawfully. ..Having said that, I have not seen a single case where AOS was denied for overstay when married to a US citizen..........I guess that could change, but I haven't seen it yet....

Edited July 12, 2018 by missileman

[geowrian 22,337]

8 minutes ago, Jojo92122 said:

Where's the regulations that states overstays are forgiven for spouses of US citizens?

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter8.html

B. Immediate Relatives

Certain adjustment bars do not apply to an immediate relative, including the spouse or child (unmarried and under 21 years old) of a U.S. citizen, and the parent of a U.S. citizen older than 21. ^[2]

 

An adjustment applicant applying as an immediate relative may be eligible to adjust status even if:

•The applicant is now employed or has ever been employed in the United States without authorization;

•The applicant is not in lawful immigration status on the date he or she files the adjustment application;

•The applicant has ever failed to continuously maintain a lawful status since entry into the United States;

•The applicant was last admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) as a visitor under the Guam or CNMI Visa Waiver Program and is not a Canadian citizen;

•The applicant was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program; or

•The applicant has ever violated the terms of his or her nonimmigrant status.

 

 

Edit: INA 245(c)(2) https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-7418.html#0-0-0-5799

(c) 1/ Other than an alien having an approved petition for classification as a VAWA self-petitioner, 1aa/ subsection (a) shall not be applicable to

...

(2) 1/ subject to subsection (k), an alien (other than an immediate relative as defined in section 201(b) or a special immigrant described in section 101(a)(27)(H) , (I) , (J) , or (K) ) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; "

Edited July 12, 2018 by geowrian

[Colinana 1]

3 minutes ago, missileman said:

Whether you have a medical condition or not is not justification for his overstay........I wouldn't even try that story...He is not stable if he is in the country unlawfully. ..Having said that, I have not seen a single case where AOS was denied for overstay..........I guess that could change, but I haven't seen it yet....

I read somewhere that said if the waiver needs to be filled out, then there needs to be a reason that can explain why he overstayed. 

[Colinana 1]

5 minutes ago, geowrian said:

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter8.html

B. Immediate Relatives

Certain adjustment bars do not apply to an immediate relative, including the spouse or child (unmarried and under 21 years old) of a U.S. citizen, and the parent of a U.S. citizen older than 21. ^[2]

 

An adjustment applicant applying as an immediate relative may be eligible to adjust status even if:

•The applicant is now employed or has ever been employed in the United States without authorization;

•The applicant is not in lawful immigration status on the date he or she files the adjustment application;

•The applicant has ever failed to continuously maintain a lawful status since entry into the United States;

•The applicant was last admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) as a visitor under the Guam or CNMI Visa Waiver Program and is not a Canadian citizen;

•The applicant was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program; or

•The applicant has ever violated the terms of his or her nonimmigrant status.

 

 

Edit: INA 245(c)(2) https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-7418.html#0-0-0-5799

(c) 1/ Other than an alien having an approved petition for classification as a VAWA self-petitioner, 1aa/ subsection (a) shall not be applicable to

...

(2) 1/ subject to subsection (k), an alien (other than an immediate relative as defined in section 201(b) or a special immigrant described in section 101(a)(27)(H) , (I) , (J) , or (K) ) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; "

Thank you! So that means the length of his overstay doesn't affect his application for adjustment status? I've been so stressed out that he might not stand a chance to stay here. 

[Crazy Cat 41,981]

3 minutes ago, Colinana said:

I read somewhere that said if the waiver needs to be filled out, then there needs to be a reason that can explain why he overstayed. 

You don't need a waiver based on the above regulation posted by @geowrian

[geowrian 22,337]

Yes, the main points are you must have been inspected and admitted, have a bona fide marriage to a USC, and are not inadmissible due to bars other than those noted above.

Edited July 12, 2018 by geowrian

[Colinana 1]

2 minutes ago, geowrian said:

Yes, the main points is you must have been inspected and admitted, have a bona fide marriage to a USC, and are not inadmissible due to bars other than those noted above.

Thank you so much. Now I can relax a little bit. We will start the paperwork soon. I'm still struggling to find a good lawyer in Seattle,WA. I have no experience with the process so I feel a little bit overwhelmed. 

[Teemo 252]

38 minutes ago, Colinana said:

Thank you so much. Now I can relax a little bit. We will start the paperwork soon. I'm still struggling to find a good lawyer in Seattle,WA. I have no experience with the process so I feel a little bit overwhelmed. 

Just make sure be does not leave the country until he has his advance parole in hand. Applying for that (plus employment authorization) is optional but it's free with your I-485 and highly recommended.

 

No need to be overwhelmed...it's actually a relatively simple process. He won't be the first overstay applying to adjust status, it's actually quite common. This guide has everything. http://www.visajourney.com/content/i130guide2