Few days of J1 au pair visa overstay before AOS

[AKvisajourney 1]

 

 

 

I am LPR. My wife's j1 visa Au pair work ended June 16. Since she has stay 30 days after that to travel in the usa. I am assuming her visa overstay days would be counted after july 16. Our i130 priority date is march 14. Which i am thinking will become current in august 1st. Which is when i plan to file her i485.

But will this 13 days of visa overstay be a problem? Do we need to submit anything extra?

[Boiler 47,472]

I 130 is taking 16 months or so. 
 

Do you mean PD?

[AKvisajourney 1]

yes priority date is march 14

[Boiler 47,472]

So not current and needs to be in status when current.

[appleblossom 4,411]

13 hours ago, AKvisajourney said:

 

 

 

I am LPR. My wife's j1 visa Au pair work ended June 16. Since she has stay 30 days after that to travel in the usa. I am assuming her visa overstay days would be counted after july 16. Our i130 priority date is march 14. Which i am thinking will become current in august 1st. Which is when i plan to file her i485.

But will this 13 days of visa overstay be a problem? Do we need to submit anything extra?

As @Boiler said, even if her PD is current in August she won’t be eligible to adjust status if she overstays. 
 

Overstays aren’t forgiven unless an immediate relative of a USC, so she needs to leave by 16th July (ideally 13th/14th ish to avoid the risk of an inadvertent overstay due to the flight being cancelled). 

Edited June 27 by appleblossom

[Crazy Cat 44,445]

14 hours ago, AKvisajourney said:

 

 

 

I am LPR. My wife's j1 visa Au pair work ended June 16. Since she has stay 30 days after that to travel in the usa. I am assuming her visa overstay days would be counted after july 16. Our i130 priority date is march 14. Which i am thinking will become current in august 1st. Which is when i plan to file her i485.

But will this 13 days of visa overstay be a problem? Do we need to submit anything extra?

If she goes out of status, she will never be able to adjust status through through an LPR. USCIS policy says all her time inside the US must be in legal status (they consider all entries). I would suggest she leave very soon and go the consular processing route.  Keep in mind that she cannot re-enter the US later as a visitor with the intent to stay and adjust status.  Good luck.

Edited June 27 by Crazy Cat

[AKvisajourney 1]

What are other ways to bring her back to USA? She is pregnant and we wanted her to be in USA in October to have the delivery here.

[Crazy Cat 44,445]

7 minutes ago, AKvisajourney said:

What are other ways to bring her back to USA? She is pregnant and we wanted her to be in USA in October to have the delivery here.

One option is a B2 visa.  That might be a problem.  Immigrant intent  is already established, and traveling to the US solely for the purpose of giving birth in the US is frowned upon by US immigration.  In addition, she can't enter the US via a B2 with the intent to adjust status.

Edited June 27 by Crazy Cat

[appleblossom 4,411]

Just now, AKvisajourney said:

What are other ways to bring her back to USA? She is pregnant and we wanted her to be in USA in October to have the delivery here.

 

Another employment based visa? But it would need to be dual intent and I assume not likely anybody will sponsor her if she's pregnant. 

 

I think you need to be prepared to travel to her for the birth instead. When are you eligible for citizenship?

[OldUser 9,909]

2 minutes ago, Crazy Cat said:

B2 visa.  That might be a problem.  Immigrant intent  is already established, and traveling to the US solely for the purpose of giving birth in the US is frowned upon by US immigration.

She won't be allowed on the plane at some point for medical reasons. Or she won't be allowed to board / enter the US on non-immigrant visa based on suspicion she's coming to give birth in the US.

 

It's likely you'd have to plan visiting her overseas. And plan on petitioning your future child.

Edited June 27 by OldUser

[AKvisajourney 1]

i will be eligible for citizenship november 2026.

We are okay if she goes back to home country after october and does consular processing.

Has anyone got visitor visa approved while i130 is pending?

[Crazy Cat 44,445]

5 minutes ago, AKvisajourney said:

We are okay if she goes back to home country after october

Isn't she out of status in 3 weeks?  She might be on their RADAR, imo.

What option did you put on the I-130......Consular processing or adjustment of status?

Edited June 27 by Crazy Cat

[OldUser 9,909]

38 minutes ago, AKvisajourney said:

Has anyone got visitor visa approved while i130 is pending?

Yes, some got approved. But sorry, again, the moment consular officer sees your wife is pregnant or has a little child with husband in the US, the chances of approval will go down drastically. Plus, she cannot come to the US on tourist visa with plan to adjust, that would be fraud.

Edited June 27 by OldUser

[AKvisajourney 1]

on i130 i have put Adjustment of status, as i thought our priority date(march 14) would be current before her j1 visa expires(july16). Would that be a problem now since she will have to do consular processing?

 

 

[JeanneAdil 7,079]

51 minutes ago, AKvisajourney said:

i will be eligible for citizenship november 2026.

We are okay if she goes back to home country after october and does consular processing.

Has anyone got visitor visa approved while i130 is pending?

Congratulations on the new baby to be born

 

Very unlikely she will be approved for tourist visa as the I 130 shows immigrant intent

 

when she returns to India the wait time for tourist visa interview in India is 8 months or longer depending on which embassy she applys to so your baby will be born in India

when applying for the spouse visa , baby will also need I 130 as you are not a USC to be able to pass citzenship to the child

but apply for the wife ASAP for consulate interview and let USCIS know when you naturalize 

 

Best to your family