How to adjust on overstay visa

[myangelblue 0]

if im not mistaken you are talking about the same thing me and my husband are filing right?? he came on visa waiver and we got married and are aos now. jus wondering ..lol

[desert_fox 32]

You are missing the point.. I agree the alien cannot adjust in the USA from a D visa by themselves simply by filing an I-485. The stipulation is the same for someone who enters on VWP and we all know that it is possible to adjust from there via an I-130. Please tell me why this is different

You are missing the point. If you entered the US with a crewmans visa...you cannot file an I-485...never. Doesnt matter if you got married, have an approved I-130...you CANNOT file for AOS. Just like you entered EWI...you CANNOT adjust status within the US with an I-485.

Read the instructions that come with the I-485...you are not elgible to file, regardless of whom petitioned for you.

[Jengles 0]

can she file the i-130 and then he go back to his country for interview? can that work or once he leaves will he have to wait to come back since he overstayed. he does have his i-94 and it is a crewman's visa.

thanks for all your help

[kim&james 0]

can she file the i-130 and then he go back to his country for interview? can that work or once he leaves will he have to wait to come back since he overstayed. he does have his i-94 and it is a crewman's visa.

thanks for all your help

She can file the I-130 and he will have to return to his country to await an interview. He will not be allowed back into the US without the correct visa. Since he has accrued a fair amount of overstay time, I believe that he will also have to file a waiver at interview to get past the 10 year ban. A chat with a good immigration attorney might be beneficial in this case.

[payxibka 10,044]

Don't leave the country until you know the answer... Departure will incur a potential ban to re-entry. Since there is a fair amount of disagreement.. See a qualified immi attorney.

[Jengles 0]

I've been telling her to see an immigration lawyer..thanks for the feedback will pass on the lawyers answers if she decides to go to one.

[zqt3344 21]

You are missing the point, it is clear and exact, read the directions for USCIS immigration law pertaining to this, there are not waivers or loopholes on this one.

You are missing the point.. I agree the alien cannot adjust in the USA from a D visa by themselves simply by filing an I-485. The stipulation is the same for someone who enters on VWP and we all know that it is possible to adjust from there via an I-130. Please tell me why this is different

[Alt name 1]

WOW.

The "alternate immigration process" often described of entering on one visa, getting married, then filing AOS and staying in-country as "pending AOS" while the I130/AOS is in process probably will not apply to this case. The overstays that are routinely forgiven (without penalty) generally involve filing the AOS WHILE THE VISAHOLDER is in legal status, and the visa usually expires during processing so they can't travel outside the country until processing is complete.

The tough ones, and most risky, are the overstays who marry and file AOS as overstays, but...... with the new "penalty" those are usually forgiven as well. Those are usually people who drive, walk, or swim across, stay, work illegally, meet someone, get married, then when they file there is an additional penalty they have to pay (it's like a thousand bucks or so) and a pretty tough AOS process but usually they get through it. If they travel outside the country during processing, they get nailed with the ban.

The problem with this case is that the visa category type is specifically prohibited from adjusting. The way the regulations are worded, it implies that the person has to return to their home country to wait for I130 processing and have the visa granted there. Chance of waiver on ban is pretty good, if the marriage is legit, but they're separated during processing. Which kind of sux for this couple because there is an anchor baby involved.

Yep, an attorney definitely should look over this one. Kind of a special case.

[Caladan 19]

WOW.

The "alternate immigration process" often described of entering on one visa, getting married, then filing AOS and staying in-country as "pending AOS" while the I130/AOS is in process probably will not apply to this case. The overstays that are routinely forgiven (without penalty) generally involve filing the AOS WHILE THE VISAHOLDER is in legal status, and the visa usually expires during processing so they can't travel outside the country until processing is complete.

The tough ones, and most risky, are the overstays who marry and file AOS as overstays, but...... with the new "penalty" those are usually forgiven as well. Those are usually people who drive, walk, or swim across, stay, work illegally, meet someone, get married, then when they file there is an additional penalty they have to pay (it's like a thousand bucks or so) and a pretty tough AOS process but usually they get through it. If they travel outside the country during processing, they get nailed with the ban.

The problem with this case is that the visa category type is specifically prohibited from adjusting. The way the regulations are worded, it implies that the person has to return to their home country to wait for I130 processing and have the visa granted there. Chance of waiver on ban is pretty good, if the marriage is legit, but they're separated during processing. Which kind of sux for this couple because there is an anchor baby involved.

Yep, an attorney definitely should look over this one. Kind of a special case.

You're not making any sense.

An overstay by definition is not someone who entered illegally. You can't overstay a legal stay if there was no legal stay to begin with. (I'm not sure how the citizen child of a citizen is an anchor baby, but that's unimportant.) An overstay doesn't need a waiver for EWI.

So let's have some accuracy here.

1) If you entered legally on a visa and overstayed, the overstay will not be a bar to attaining permanent residency through marriage. It doesn't matter how the overstay happened or when people filed for AOS having overstayed. There is no penalty fee for filing AOS from an overstayed visa.

2) If you entered illegally, you will not be able to adjust status even through marriage. You'll have to go home, file for a visa, and then successfully pursue a waiver in order to return. There is an extra fee to process this waiver. There is no penalty fee.

The question here is whether the C/D visa precludes someone who entered on it and overstayed filing for an I-130. Looking at the instructions, it is as fwaguy says: a little ambiguous. Included in the category where it says the person may not adjust status is also, e.g., illegal work, an overstay, , which we all know is not a bar to adjusting status based on marriage. Also included in that category are EWIs, which can't adjust. (The form is right -- you don't file based off of your expired tourist visa, but off of an approved or concurrently filed I-130.)

Verdict: ambiguous.

So the question is whether the crewman is treated more like an EWI or more like an overstayed tourist visa. I suspect, since it is singled out, that it is more like an EWI, but this is a case for an attorney and not speculation. Your friend shouldn't leave until he gets a definitive answer, because this might be the sort of thing resolvable without a separation. Leaving will trigger a ban, and that *will* require a waiver.

[Singers 0]

To help with the ambiguity:

ANYBODY can file an I-130. No matter what your situation is, the family visa process starts with the I-130.

Only eligible people can file the I-485. Someone on a crewmen's visa is not one of them. People that come here on VWP or other visas are one of the exceptions listed on the form. It specifically excludes crewmen.

A ban for overstay only occurs after 180 days of accumulated overstay and then it is a 3 year ban. (The ban is a tricky situation depending upon length of stay, when and if you have left and re-entered the country etc.) Overstays are forgiven at interview (through marriage of USC) ONLY if you have not left the country and re-entered after you accumulated overstay. If you leave then you will need to file a waiver.

[Jengles 0]

His is not planning on leaving the U.S. at all, they were hoping for him to be able to work when the baby comes next summer, they knew he might not have his green card by then but were hoping for at least an EAD.

[Singers 0]

I would spend the $100 to get an initial consult with an attorney.

As far as I can tell (and I am no expert!) he cannot adjust status in the US. He will have to go home and then file for the correct visa. As long as he does not accumulate over 180 days, he will not need a waiver but he must be HONEST about his overstay at interview.

I can completely understand about wanting to stay for the baby (I'm a new mom myself!) so the faster they can get an answer to their conundrum the better.

[Tom_Jim 40]

To clear up any ambiguity below is a verbatim excerpt from the Code:

INA Section 245( c)

Alien Crewmen, Aliens Continuing or Accepting Unauthorized Employment, and Aliens Admitted in Transit Without Visa

(c )Other than an alien having an approved petition for classification as a VAWA self-petitioner, subsection (a) shall not be applicable to (1) an alien crewman; (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 201(B ) or a special immigrant described in section 101(a)(27)(H),(I),(J), or (K) ) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 212(d)(4)(c ) ; (4) an alien (other than an immediate relative as defined in section 201(B ) ) who was admitted as a nonimmigrant visitor without a visa under section 212(l) or section 217 ; (5) an alien who was admitted as a nonimmigrant described in section 101(a)(15)(S ) ; (6) an alien who is deportable under section 237(a)(4)(B ) ; 1a/ (7) 2/ any alien who seeks adjustment of status to that of an immigrant under section 203(B ) and is not in a lawful nonimmigrant status; or (8 ) any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3) , or who has otherwise violated the terms of a nonimmigrant visa.

Subsection a is: Status as Person for Permanent Residence on Application and Eligibility for Immigrant Status.

If he was an alien crew member and overstayed, it appears he cannot successfully adjust status to permanent residence.

Edited December 3, 2007 by latoslatos

[athena_ny 1]

WOW.

The "alternate immigration process" often described of entering on one visa, getting married, then filing AOS and staying in-country as "pending AOS" while the I130/AOS is in process probably will not apply to this case. The overstays that are routinely forgiven (without penalty) generally involve filing the AOS WHILE THE VISAHOLDER is in legal status, and the visa usually expires during processing so they can't travel outside the country until processing is complete.

The tough ones, and most risky, are the overstays who marry and file AOS as overstays, but...... with the new "penalty" those are usually forgiven as well. Those are usually people who drive, walk, or swim across, stay, work illegally, meet someone, get married, then when they file there is an additional penalty they have to pay (it's like a thousand bucks or so) and a pretty tough AOS process but usually they get through it. If they travel outside the country during processing, they get nailed with the ban.

The problem with this case is that the visa category type is specifically prohibited from adjusting. The way the regulations are worded, it implies that the person has to return to their home country to wait for I130 processing and have the visa granted there. Chance of waiver on ban is pretty good, if the marriage is legit, but they're separated during processing. Which kind of sux for this couple because there is an anchor baby involved.

Yep, an attorney definitely should look over this one. Kind of a special case.

You're not making any sense.

An overstay by definition is not someone who entered illegally. You can't overstay a legal stay if there was no legal stay to begin with. (I'm not sure how the citizen child of a citizen is an anchor baby, but that's unimportant.) An overstay doesn't need a waiver for EWI.

So let's have some accuracy here.

1) If you entered legally on a visa and overstayed, the overstay will not be a bar to attaining permanent residency through marriage. It doesn't matter how the overstay happened or when people filed for AOS having overstayed. There is no penalty fee for filing AOS from an overstayed visa.

2) If you entered illegally, you will not be able to adjust status even through marriage. You'll have to go home, file for a visa, and then successfully pursue a waiver in order to return. There is an extra fee to process this waiver. There is no penalty fee.

The question here is whether the C/D visa precludes someone who entered on it and overstayed filing for an I-130. Looking at the instructions, it is as fwaguy says: a little ambiguous. Included in the category where it says the person may not adjust status is also, e.g., illegal work, an overstay, , which we all know is not a bar to adjusting status based on marriage. Also included in that category are EWIs, which can't adjust. (The form is right -- you don't file based off of your expired tourist visa, but off of an approved or concurrently filed I-130.)

Verdict: ambiguous.

So the question is whether the crewman is treated more like an EWI or more like an overstayed tourist visa. I suspect, since it is singled out, that it is more like an EWI, but this is a case for an attorney and not speculation. Your friend shouldn't leave until he gets a definitive answer, because this might be the sort of thing resolvable without a separation. Leaving will trigger a ban, and that *will* require a waiver.

Now I don't even have to respond

[payxibka 10,044]

Nobody is questionng that a person who arrives on a C/D visa cannot adjust status simply by filing an I-485. This is clear.

The issue at hand is that since the person is now married to a USC, can the USC file an I-130 and once the petition is approved then and only then can the alien then file an I-485 requesting status adjustment based on the approved I-130. If so, then they are not requesting status adjustment from C/D visa but based on the I-130.

I also think the question of proper inspection comes into play and may be the wildcard. Does the alien have or still have the I-94 from there last entry? Without it will be even more hugely problematic.

Edited December 3, 2007 by fwaguy