F1 overstay, marrying soon will I run into issues?

[chino-dm 0]

Hi guys I'm new here and I would appreciate your guidance.

I overstayed F-1 visa for couple of years. Been dating my USC girlfriend since last year and plan on getting married in a few weeks and want to file AOS with my fiance. Will I run into any issues? I am very concerned because of the new USCIS memo redefining 'unlawful presence' which starts Aug 9. Am I at risk with my AOS application in the future? I should also mention that while out of status I setup a business investing in websites and hired freelancers to run things (filed tax returns and everything). Should I hire an immigration lawyer or do you think my case is no different from other AOS from overstay on the forum? Any and all tips will be helpful

[Hypnos 6,576]

You could overstay for 20 years and it wouldn't impact your eligibility to AoS as an immediate relative of a US citizen, provided you entered legally.

[aznhouston 124]

 

6 hours ago, Hypnos said:

You could overstay for 20 years and it wouldn't impact your eligibility to AoS as an immediate relative of a US citizen, provided you entered legally.

OP has the right to concern. Previously, being out of status doesn't mean you're accruing unlawful presence until you are, well, "caught".

That will change on this upcoming Aug 9.

 

https://www.uscis.gov/news/news-releases/uscis-changing-policy-accrued-unlawful-presence-nonimmigrant-students-and-exchange-visitors

 

In this link, it says:

"Individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on that date based on that failure"

 

So I would recommend you guys to get married and file ASAP.

[Hypnos 6,576]

I am aware of the policy change. 

 

However, nothing I have said was incorrect. Overstay does not impact the ability of immediate relatives to be able to file for AoS, and the length of the overstay is functionally irrelevant. 

[aznhouston 124]

On 8/3/2018 at 3:03 PM, Hypnos said:

I am aware of the policy change. 

 

However, nothing I have said was incorrect. Overstay does not impact the ability of immediate relatives to be able to file for AoS, and the length of the overstay is functionally irrelevant. 

So how do you explain the bar to adjustment of status stated in this link:

 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter2.html#footnote-81

 

Quote

Who Failed to Continuously Maintain Lawful Status Since Entry into United States

 

[geowrian 22,336]

13 minutes ago, hoangthaihuy said:

So how do you explain the bar to adjustment of status stated in this link:

 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter2.html#footnote-81

The bar does not apply to Immediate Relative (Spouse/parent/under 21 child of a USC) category applicants:

 

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

"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.

"

[NikLR 13,220]

15 minutes ago, hoangthaihuy said:

So how do you explain the bar to adjustment of status stated in this link:

 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter2.html#footnote-81

 

 

Go over to the right and read the "exempt from bar" 

 

[aznhouston 124]

Got it. My bad.

So the new policy basically applies to employment-based GC applicant?

Weird

Edited August 5, 2018 by hoangthaihuy

[geowrian 22,336]

6 minutes ago, hoangthaihuy said:

Got it. My bad.

So the new policy basically applies to employment-based GC applicant?

Weird

It applies to all applicants who not exempt from the bar (relatives of an LPR, adult son/daughter of a USC, sibling of a USC, employment-based AOS, etc.).

[SteveE 25]

I filed for AOS last year via marriage to a USC with over 20 years of being out of status.

 

Field office was Los Angeles, priority date January '17, interview June '17, approval June '18. 10 Year green card in hand June '18.

 

No criminal record

No prior deportation order

Entered with inspection on a visa that allows AOS.

Married to a USC.

 

As the spouse of a USC filing for AOS you are eligible for certain benefits that include forgiving of unauthorized work and being out of status (doesn't make a difference if it's 20 days or 20 years). Where the new policy would have an impact is if your case is denied.

 

Leaving the country after having accrued illegal presence could lead to a ban. A quick google search returns this

 

http://www.alllaw.com/articles/nolo/us-immigration/can-visa-overstay-be-forgiven.html