Applying for Marriage Green Card from Abroad with overstay

[African Zealot 1,457]

At this point it’s too late to engage in forensics, at least for you. File the application and hope. COVID has been an extenuating event. Don’t stress, it might end up favorably without even a waiver required or with a waiver that might be smoothly approved. 

 

I know it’s easy for me to say don’t stress however I have also been through an immigration event that could have been fatal to my entire immigration journey, but in the end absolutely nothing came of it.

 

Good luck

 

PS: My advice going forward is that in life never cut something close to the very last minute/day/week. Always leave yourself some room, like a few days/week etc. Staying for 180 days on the dot was milking all the time you had.

[Lana and Tom 1]

4 minutes ago, Ray.Bonaquist said:

At this point it’s too late to engage in forensics, at least for you. File the application and hope. COVID has been an extenuating event. Don’t stress, it might end up favorably without even a waiver required or with a waiver that might be smoothly approved. 

 

I know it’s easy for me to say don’t stress however I have also been through an immigration event that could have been fatal to my entire immigration journey, but in the end absolutely nothing came of it.

 

Good luck

 

PS: My advice going forward is that in life never cut something close to the very last minute/day/week. Always leave yourself some room, like a few days/week etc. Staying for 180 days on the dot was milking all the time you had.

Thank you for your kind words. And Im glad things worked out for you!

With the information of having 6 months, we thought we had 3 days left until we would get into trouble and wanted to spend all the time we could together. But I would definetely not redo this again.

My only question now would be if I first need to wait for the approval of the I-601 or if I can file for I-130 and I-130a at the same time as the waiver.

[aaron2020 11,652]

17 minutes ago, Lana and Tom said:

However, you would still not be able to obtain your Green Card from within the U.S. as your VWP status has expired. 
 

Finally, in all events you should make sure that you leave the U.S. within 6 months of the expiration of your VWP period of admission. r).

Absolutely wrong on both these vital points.

 

You could have adjusted status even with a VWP overstay since you entered the US legally and would have adjusted status based on marriage to a US citizen.

6 months is not the same as 180 days.  The law is very precise.  

[Dashinka 26,196]

1 minute ago, Lana and Tom said:

Thank you for your kind words. And Im glad things worked out for you!

With the information of having 6 months, we thought we had 3 days left until we would get into trouble and wanted to spend all the time we could together. But I would definetely not redo this again.

My only question now would be if I first need to wait for the approval of the I-601 or if I can file for I-130 and I-130a at the same time as the waiver.

Your spouse sends in the I130/I130A, and it gets processed.  It takes about a year or so for that processing to get to the consulate phase/interview.  At that point, the CO (consulate officer) will determine if you need to submit the I601 waiver.

[Lana and Tom 1]

Just now, aaron2020 said:

Absolutely wrong on both these vital points.

 

You could have adjusted status even with a VWP overstay since you entered the US legally and would have adjusted status based on marriage to a US citizen.

6 months is not the same as 180 days.  The law is very precise.  

I wish I would have known about this forum half a year ago.

[aaron2020 11,652]

2 minutes ago, Lana and Tom said:

Thank you for your kind words. And Im glad things worked out for you!

With the information of having 6 months, we thought we had 3 days left until we would get into trouble and wanted to spend all the time we could together. But I would definetely not redo this again.

My only question now would be if I first need to wait for the approval of the I-601 or if I can file for I-130 and I-130a at the same time as the waiver.

You file the I-130 and I-130a.   If you get a visa denial at your interview, they will then advise you whether you are eligible to apply for a waiver.  You can not apply for the waiver before your interview.  

[SalishSea 18,589]

1 hour ago, Lana and Tom said:

That also means I might not even be able to enter for the interview...

Interviews for US visas do not take place inside the US.  It will be at your US consulate.

[SalishSea 18,589]

1 hour ago, Lana and Tom said:

Thank you, that is very helpful! Would a B1/B2 (I work for an american company as a freelancer) still be an option?

Very doubtful you would get a B visa, with an overstay and a demonstrated immigrant intent.  Also:  you wouldn't be allowed to work, even remotely, even for an 'American company' whilst in the US on a B visa.

 

I also would like to point out that services like Boundless as well as immigration attorneys cannot make any visa/waiver process faster or more likely to be approved.  Might as well save your money and invest your extra time into reading and researching the process for your own education.

[Lana and Tom 1]

4 minutes ago, Jorgedig said:

Very doubtful you would get a B visa, with an overstay and a demonstrated immigrant intent.  Also:  you wouldn't be allowed to work, even remotely, even for an 'American company' whilst in the US on a B visa.

 

I also would like to point out that services like Boundless as well as immigration attorneys cannot make any visa/waiver process faster or more likely to be approved.  Might as well save your money and invest your extra time into reading and researching the process for your own education.

It wouldnt really be a problem not to be able to work while I am visiting 2 weeks every 2 months or so. At least my husband is allowed to come to see me in Germany. It just hurts to know that things could have been so much easier. 

Now I also know that a lawyer is not a guarantee for success. Seeing the price tag I would have assumed that I am paying to have a peace of mind...

[Boiler 48,098]

Somewhat clearer, you wanted to stay and were here about 9 months and seem to have triggered the 3 year bar. Best to double check the dates, I would expect the CO will but if you need a waver you can get it together and be ready to file.

 

Because of the Covid you could have had 30 days extra on the VWP but that is not now relevant and seems would not have met your needs.

[Crazy Cat 45,541]

1 hour ago, Lana and Tom said:

Would a B1/B2 (I work for an american company as a freelancer) still be an option?

A ban means a person cannot enter the US for any reason until expiration waiver approval.  I wish you had come here before leaving the US.

Edited October 26, 2020 by Lucky Cat

[Lana and Tom 1]

7 minutes ago, Boiler said:

Somewhat clearer, you wanted to stay and were here about 9 months and seem to have triggered the 3 year bar. Best to double check the dates, I would expect the CO will but if you need a waver you can get it together and be ready to file.

 

Because of the Covid you could have had 30 days extra on the VWP but that is not now relevant and seems would not have met your needs.

As I was going in and out of the States almost every week (I lived in Montreal close to the border), I did not have a 'fresh stamp' when I entered the US before the border was closed due to Covid. So I only had 6 weeks left on my VW. I did ask for an extension through satisfactory departure, but was denied. My last VW says april 19th, but I entered March 17th and I left the country october 16th. So in total, I did stay about 8 months in the US.

[Lana and Tom 1]

9 minutes ago, Lucky Cat said:

A ban means a person cannot enter the US for any reason until expiration waiver approval.  I wish you had come here before leaving the US.

I wish so too. Is there any way to find out if the ban is actually in place?

[HRQX 4,146]

1 hour ago, Lana and Tom said:

My only question now would be if I first need to wait for the approval of the I-601 or if I can file for I-130 and I-130a at the same time as the waiver.

You need to wait for visa interview decision before filing I-601: https://www.uscis.gov/i-601-addresses

I am...

Seeking an immigrant visa or a nonimmigrant K or V visa and I have been found inadmissible by a consular officer after my visa interview.

 

Mail the Form I-601 to:

USCIS Phoenix Lockbox

For U.S. Postal Service:

USCIS
P.O. Box 21600
Phoenix, AZ 85036

For FedEx, UPS, and DHL deliveries:

USCIS
ATTN: 601/212 Foreign Filers
1820 E. Skyharbor, Circle S, Suite 100
Phoenix, AZ 85034

[aaron2020 11,652]

12 minutes ago, Lana and Tom said:

I wish so too. Is there any way to find out if the ban is actually in place?

Only way to find out is a denial at a visa interview.

 

With a VWP overstay, you could apply for a visitor visa.  If you get a denial at your interview, they would be able to tell you if you have a ban or not.