Overstayed Tourist VISA

[aa1979 100]

There is this restaurant worker, who asked me an immigration question. She is a USC. She has recently got married to someone who came into the US on a tourist visa. He, the tourist, was not overstaying his tourist visa at the time of marriage. They have not applied to adjust status as of yet. He was supposed to leave the country but he overstayed his visa now. When I asked her about the reason she said that they were told that he can overstay his visa just fine since they are already married and plan to adjust status. She is asking two questions:

 

1) Is there any potential issues of over-staying his tourist visa and applying now to adjust status? Should he for example leave the country and apply for immigrant visa as a spouse of a US-citizen? Or should he just go a head and apply with the AOS process at this point?

 

2) Is he required to have health insurance at this point? and how would he get insurance if he has no status at this point prior to applying?

 

Thanks, and I will relay the replies to her next time I see her.

[oneoftheunderdogs 94]

Since he is already in the US he can file for AOS since his spouse is a USC and his visa overstay will be forgiven. A potential issue would be if he misrepresented his intent at the time he entered the country as a tourist. Did they know each other before he came to the US? Were they planning on getting married?

 

As far as I know health insurance was a question on the (now obsolete) form I-944. Also, does she make 125% of the poverty level, i.e. is she able to sponsor her husband? If not, she will need a co-sponsor.

[aa1979 100]

1 minute ago, oneoftheunderdogs said:

Since he is already in the US he can file for AOS since his spouse is a USC and his visa overstay will be forgiven. A potential issue would be if he misrepresented his intent at the time he entered the country as a tourist. Did they know each other before he came to the US? Were they planning on getting married?

 

As far as I know health insurance was a question on the (now obsolete) form I-944. Also, does she make 125% of the poverty level, i.e. is she able to sponsor her husband? If not, she will need a co-sponsor.

Thank you for the reply. It sounds logical and it makes sense. How confident are you that his current overstay of his tourist VISA will be forgiven (I know she will probably ask me that)?

I don't think they knew each other prior to his arrival. I don't know for sure, but that's what it sounded like to me. The story I was told is that he came in here as a tourist and ended up getting married to her.

I am aware of the 125% of the poverty line issue and I will inform her of that... Thank you!

[Boiler 45,666]

35 minutes ago, aa1979 said:

Thank you for the reply. It sounds logical and it makes sense. How confident are you that his current overstay of his tourist VISA will be forgiven (I know she will probably ask me that)?

I don't think they knew each other prior to his arrival. I don't know for sure, but that's what it sounded like to me. The story I was told is that he came in here as a tourist and ended up getting married to her.

I am aware of the 125% of the poverty line issue and I will inform her of that... Thank you!

There is a reason VJ has a forum for this specific set of circumstances.

 

She should join and educate herself on the process.

[aa1979 100]

2 minutes ago, Boiler said:

There is a reason VJ has a forum for this specific set of circumstances.

 

She should join and educate herself on the process.

I looked for a forum with similar circumstances and could not find one. I was still sure there was one. Please provide me with a link if you know one!

[Boiler 45,666]

 

[Timona 4,207]

They can adjust just fine.

Go ahead and follow the attached guides.

 

Recently got married while the guy was still on legal stay? Mmmmmm this one i don't understand. How'd you get married to someone that quick? That must have been within the 6 months max that's allowed, if ever he got the max stay. Anyway, to each their own. Continue with the below link

 

 

 

Edited June 14, 2021 by Timona

[Chancy 6,241]

1 hour ago, aa1979 said:

Is there any potential issues of over-staying his tourist visa and applying now to adjust status?

 

As a person with no legal immigration status in the US, he is deportable.  But the risk is very low that he will get in trouble with ICE, as long as he keeps a low profile.  In any case, as a spouse of a US citizen, his overstay will not be a problem for his adjustment of status (AOS).  Do encourage them to file as soon as possible, so he will be authorized to stay while his AOS is pending.

 

1 hour ago, aa1979 said:

Should he for example leave the country and apply for immigrant visa as a spouse of a US-citizen? Or should he just go a head and apply with the AOS process at this point?

 

Both options are legal as he is already in the US, but the choice will depend on the couple's circumstances.  If he files for AOS, he cannot work until he gets his EAD work permit or his green card.  Current estimates for EAD processing is 5.5 to 10.5 months.  Are they financially and mentally prepared for that?

 

1 hour ago, aa1979 said:

Is he required to have health insurance at this point? and how would he get insurance if he has no status at this point prior to applying?

 

Having health insurance is not required for AOS, but highly recommended for his own well-being.  If his USC spouse has insurance from her employment, she may be able to add him to her plan now as her dependent.  If not, he can get coverage from the insurance marketplace after he files for AOS.

 

[Adventine 3,201]

They should file for Adjustment of Status as soon as possible. There are guides here on VJ for that.

 

It would be best for your friend and her spouse to join VJ themselves and learn about the process firsthand. The documents are not hard but they do require the petitioner and beneficiary to be detail-oriented.

Edited June 15, 2021 by Adventine

[aa1979 100]

Thank you all for the information. I will let her know when I see her!

[caliliving 606]

3 hours ago, aa1979 said:

Thank you all for the information. I will let her know when I see her!

She is fine! I overstayed 5 years got married applied and got the greencard. All is well! It takes a while and don’t leave the country until you have the GC in hand! If you have to leave, you will never be allowed back.

[aa1979 100]

What about the question when they ask him in the application if he ever overstayed a visa? I am presuming he should answer that with a "yes" and provide an explanation that he got married then overstayed because he was preparing to apply for adjustment of status after his marriage (he overstayed after his marriage not before) Is that correct? or are they asking him in regards to past times, not the current overstay, and therefore he should say no he never overstayed his visa?

[oneoftheunderdogs 94]

29 minutes ago, aa1979 said:

What about the question when they ask him in the application if he ever overstayed a visa? I am presuming he should answer that with a "yes" and provide an explanation that he got married then overstayed because he was preparing to apply for adjustment of status after his marriage (he overstayed after his marriage not before) Is that correct? or are they asking him in regards to past times, not the current overstay, and therefore he should say no he never overstayed his visa?

One thing he should definitely NOT do is lie to an immigration officer. That would be very serious! 
 

These processes are in place for a reason, so it is best to be honest and he will be fine!

 

If in serious doubt I would suggest they do a consultation with an experienced immigration lawyer, you will likely get a quicker answer than here. I paid like $140 for a 30 minute consult, definitely worth it, imo 

[Adventine 3,201]

4 hours ago, aa1979 said:

What about the question when they ask him in the application if he ever overstayed a visa? I am presuming he should answer that with a "yes" and provide an explanation that he got married then overstayed because he was preparing to apply for adjustment of status after his marriage (he overstayed after his marriage not before) Is that correct? or are they asking him in regards to past times, not the current overstay, and therefore he should say no he never overstayed his visa?

When he entered the US, he was given a certain amount of time to stay. He should be able to find this out by looking at what CBP stamped on his passport, or downloading his I-94.

 

The period between that date and the date he files for AOS is an overstay.

[SalishSea 17,928]

6 hours ago, caliliving said:

If you have to leave, you will never be allowed back.

This is not at all correct.