Visiting CBP at airport, possibility of detention? (Fiancée overstayed visa) (merged)

[drudolf17 3]

Hello,

 

My fiancee unknowingly overstayed her allowable presence in the USA. This happened because her passport expired before her H-1B's stated expiration date. My understanding is still a bit fuzzy, but I believe this resulted in her I-94 becoming invalid before her H-1B's expiration, resulting in the unlawful presence.

 

Her H-1B expired in August, 2021 and her employer has applied for a "nunc pro tunc" (NPT) to forgive her oversight. As it has been over 6 months since her last allowable day in the country, I am under the understanding that a denial of the NPT will result in a 3 year ban from re-entering.

 

Her employer's legal team has suggested we get married immediately and file for marriage-based green card. They said that unlawful presence is forgiven for applicants of marriage-based green cards.

 

A few questions I am hoping to get some help with:

 

1. If the NPT is denied resulting in a 3-year ban: Is there a way around this ban? For example, would being married in another country allow us to re-enter before the 3-year ban?

2. If we do not get married and the NPT is denied: If we wait till after the NPT is denied and get married immidiately & file spouse-sponsored GC, would that still forgive the unlawful presence. In other words, why would applying for marriage GC now be acceptable but not after NPT denial?

3. Although she has worked unlawfully for 6+ months, should she halt work now that she IS aware (until the NPT decision is made)? Would this make the case for NPT / forgiveness any stronger?

 

Thanks in advance, please let me know if I can clarify any parts of the situation!

[iwannaplay54 985]

In your case I make the rare call to follow her employer legal team’s advice, get married, and file I130/485/etc.  If you choose to go that route I certainly wouldn’t leave the country with her.

 

[powerpuff 5,889]

Are you a US citizen?

Edited March 24, 2022 by powerpuff

[drudolf17 3]

Thank you for your replies.

 

1 minute ago, powerpuff said:

Are you a US citizen?

Yes.

 

5 minutes ago, iwannaplay54 said:

I certainly wouldn’t leave the country with her.

Do you mean that we should both remain in the country after filing for GC? I don't quite follow this statement.

[Bajinga 136]

get married and file for AOS, like her employers team suggested both the overstay and illegal work will be forgiven once you file the AOS (I-485, I-130). I also suggest she stop working and file for EAD (I-765) and Advance Parole (I-131) as they will be free to file as part of AOS. She can start working again once the EAD is approved. Also, do not leave the country till the AP is approved.

[Boiler 43,426]

Do not leave the US!

 

Marry and adjust

[drudolf17 3]

 

10 minutes ago, Bajinga said:

get married and file for AOS, like her employers team suggested both the overstay and illegal work will be forgiven once you file the AOS (I-485, I-130). I also suggest she stop working and file for EAD (I-765) and Advance Parole (I-131) as they will be free to file as part of AOS. She can start working again once the EAD is approved. Also, do not leave the country till the AP is approved.

Thank you. Her legal team said the NPT decision is made in approx. 2-3 weeks. In that case, if she is denied she will still be able to remain as spouse / GC applicant? I just did a quick search and turnaround time on all of those forms is 4-14 months.

 

If she is denied NPT and we are not married, can we still get married and file for GC before she has to leave the country?

[drudolf17 3]

2 minutes ago, Boiler said:

Do not leave the US!

 

Marry and adjust

 

Thank you!

[Rocio0010 5,562]

6 minutes ago, drudolf17 said:

In that case, if she is denied she will still be able to remain as spouse / GC applicant? I just did a quick search and turnaround time on all of those forms is 4-14 months.

If you marry before and submit the application before the denial, then yes. Even though the turnaround time is 4-14 months, just by having submitted the forms she will be in a period of "authorized stay". She will get a letter upon receipt of the forms by USCIS, which will be proof of her authorized stay.

 

6 minutes ago, drudolf17 said:

If she is denied NPT and we are not married, can we still get married and file for GC before she has to leave the country?

Legally, she can. Any unlawful presence is forgiven for spouses of USC. However, this is not advisable. Years ago there was a thread here of a fiance that was getting ready to file her papers, got pulled over in traffic and things went south, with the beneficiary being detained. Best bet to be safe is to marry and adjust. Go to the courthouse, no need/ time to do anything fancy now. The forms to be filed are 

I-130,

I-131

I-765

I-864

I-485

 

And yes, she should stop working now if she is under unlawful presence

Edited March 24, 2022 by Rocio0010

[iwannaplay54 985]

1 hour ago, drudolf17 said:

Thank you for your replies.

 

Yes.

 

Do you mean that we should both remain in the country after filing for GC? I don't quite follow this statement.

Absolutely

[drudolf17 3]

43 minutes ago, Rocio0010 said:

The forms to be filed are 

I-130,

I-131

I-765

I-864

I-485

Appreciate this! Thanks for the advice.

 

44 minutes ago, Rocio0010 said:

She will get a letter upon receipt of the forms by USCIS, which will be proof of her authorized stay

Will this also serve as work authorization?

 

 

48 minutes ago, Rocio0010 said:

Legally, she can. Any unlawful presence is forgiven for spouses of USC. However, this is not advisable.

I just want to make sure I understand correctly. If we were denied NPT and had not gotten married, the receipt of authorization would serve as authorized stay. Would the letter of receipt of the I-765 also serve as authorization to work?

[drudolf17 3]

3 minutes ago, iwannaplay54 said:

Absolutely

I understand her staying in the country, but why should I avoid leaving?

[iwannaplay54 985]

3 minutes ago, drudolf17 said:

I understand her staying in the country, but why should I avoid leaving?

“With her” doesn’t limit your travel.  Please re-read.  I misread your question.  You can go anywhere you want.

Edited March 24, 2022 by iwannaplay54

[Rocio0010 5,562]

5 minutes ago, drudolf17 said:

Will this also serve as work authorization?

No. The text of the letter says that “this letter does not provide any immigration benefit”. The work authorization will come as a combo card in about 6-8 months after filing. For that, you file form I-765

[drudolf17 3]

1 minute ago, iwannaplay54 said:

“With her” doesn’t limit your travel.  Please re-read

Ohh, I understand. Thanks.