How to adjust on overstay visa

[desert_fox 32]

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.

The USC can file the I-130, but the D-1 crewman guy cannot file an I-485 to adjust status...

It's the law!!!! which you don't seem to believe.

By all means talk to an attorney, but don't pay him a dime if he says he can take care of it, because it won't happen.

[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.

The USC can file the I-130, but the D-1 crewman guy cannot file an I-485 to adjust status...

It's the law!!!! which you don't seem to believe.

By all means talk to an attorney, but don't pay him a dime if he says he can take care of it, because it won't happen.

I fully agree that the crewman CANNOT file an I-485 and try to adjust status from there current status as they are NOT eligible.

What you don't want to try to understand is that the filing of an I-130 may indeed remove that barrier because they will no longer be filing an adjustment of status from C/D, but now filing the adjustment of status as a qualifying RELATIVE OF A USC. The establishment of which (approved I-130) means they have become eligible . No doubt that until such relationship is established the crewman is "dead in the water".

[Minya's wife 24]

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.

The USC can file the I-130, but the D-1 crewman guy cannot file an I-485 to adjust status...

It's the law!!!! which you don't seem to believe.

By all means talk to an attorney, but don't pay him a dime if he says he can take care of it, because it won't happen.

I fully agree that the crewman CANNOT file an I-485 and try to adjust status from there current status as they are NOT eligible.

What you don't want to try to understand is that the filing of an I-130 may indeed remove that barrier because they will no longer be filing an adjustment of status from C/D, but now filing the adjustment of status as a qualifying RELATIVE OF A USC. The establishment of which (approved I-130) means they have become eligible . No doubt that until such relationship is established the crewman is "dead in the water".

There is also the increasing overstay to consider. If it is viable route, for the USC to file the I-130 and upon its approval, file the I-485, it still does not solve the overstay issue. With the family based petition approvals taking as long as they are taking these days,....it may add unnecessary overstay in this situation (I don't remember reading it in the OP, but how long of an overstay are we talking about?). I know overstays are forgiven, but if all goes well according to this scenario, at the eventual interview the IO may still find fault with the lengthy overstay and may question if this route was all done to circumvent the ineligiblity of the C/D visa to file AOS. Dunno, just a thought.

-P

Edited December 3, 2007 by Paula&Minya

[zqt3344 21]

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

Right because it is crystal clear and in black and white, it is the law, they will not be allowed to adjust on a crewman overstaying a visa, they will not be allowed to do this.

[payxibka 10,044]

Right because it is crystal clear and in black and white, it is the law, they will not be allowed to adjust on a crewman overstaying a visa, they will not be allowed to do this.

First of all, when dealing with such a complicated, convuluted set of laws, rules and regulations hardly anything is CRYSTAL clear. Secondly, I am glad that you are so well versed in this particular section of the INA as to be able give such clear cut guidance.

Edited December 3, 2007 by fwaguy

[desert_fox 32]

why dont you bother to read the instructions on the I-485. There are several classes of people who cannot file for AOS. EWI's. K holders who married someone other than the orig petitioner, C-D visa holders, and on.

This is done for a very good reason. It is so easy to get a job on a cruise ship, or on some banana boat, fishing boat, etc. that everyone from 3rd world countries would sign on and jump ship at the first US POE.

It doesnt matter if this guy is the beneficiary of a petition submitted by Hillary herself....he CANNOT adjust status within the US.;

Now you may continue to advise ppl that it is possible, and see a law3yer, and find the loop hole, and spend a fortune and lose. I can find the answer in five minutes in the INS code.

[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

Right because it is crystal clear and in black and white, it is the law, they will not be allowed to adjust on a crewman overstaying a visa, they will not be allowed to do this.

I was addressing the overstay 'penalty' that D&N had made up in his/her mind when adjusting based on marriage to a USC.

But we know you're only here to further an ulterior motive, so I'll ignore you.

[payxibka 10,044]

why dont you bother to read the instructions on the I-485. There are several classes of people who cannot file for AOS. EWI's. K holders who married someone other than the orig petitioner, C-D visa holders, and on.

This is done for a very good reason. It is so easy to get a job on a cruise ship, or on some banana boat, fishing boat, etc. that everyone from 3rd world countries would sign on and jump ship at the first US POE.

It doesnt matter if this guy is the beneficiary of a petition submitted by Hillary herself....he CANNOT adjust status within the US.;

Now you may continue to advise ppl that it is possible, and see a law3yer, and find the loop hole, and spend a fortune and lose. I can find the answer in five minutes in the INS code.

No you can't because the answer is not clear.... What part of requesting adjustment based on an approved I-130 and NOT directly from the crewman's visa do you not understand?

So OK, I will take you challeng and here is what I read in the instructions:

Who May File This Form I-485?

1. Based on an immigrant petition. Hmmmm... seems to me that an immigrant petition is the I-130...

What you are failing to see is that they would NOT filing status adjustment from a crewman's visa (due to ineligibility) but as a qualifying relative of a USC. If they are eligible under one section (established qualifying family relationship with an approved I-130) and ineligible under another section, which section has priority? The fact remains that they have the ability to established one form of eligibility. Are they then precluded from filing even though they are eligible? Alas, the $100,000 question. What other facts and circumstances are needed... I personally think the other wildcard is the inspection....

There is no question that currently having not yet established eligibility the person will not be successful...

Edited December 3, 2007 by fwaguy

[desert_fox 32]

why dont you bother to read the instructions on the I-485. There are several classes of people who cannot file for AOS. EWI's. K holders who married someone other than the orig petitioner, C-D visa holders, and on.

This is done for a very good reason. It is so easy to get a job on a cruise ship, or on some banana boat, fishing boat, etc. that everyone from 3rd world countries would sign on and jump ship at the first US POE.

It doesnt matter if this guy is the beneficiary of a petition submitted by Hillary herself....he CANNOT adjust status within the US.;

Now you may continue to advise ppl that it is possible, and see a law3yer, and find the loop hole, and spend a fortune and lose. I can find the answer in five minutes in the INS code.

No you can't because the answer is not clear.... What part of requesting adjustment based on an approved I-130 and NOT directly from the crewman's visa do you not understand?

So OK, I will take you challeng and here is what I read in the instructions:

Who May File This Form I-485?

1. Based on an immigrant petition. Hmmmm... seems to me that an immigrant petition is the I-130...

What you are failing to see is that they would NOT filing status adjustment from a crewman's visa (due to ineligibility) but as a qualifying relative of a USC. If they are eligible under one section (established qualifying family relationship with an approved I-130) and ineligible under another section, which section has priority? The fact remains that they have the ability to established one form of eligibility. Are they then precluded from filing even though they are eligible? Alas, the $100,000 question. What other facts and circumstances are needed... I personally think the other wildcard is the inspection....

There is no question that currently having not yet established eligibility the person will not be successful...

There is more to filing a I-485 than having an approved I-130....It also depends on how you entered the US. C or D visa....go back home for your interview because you cannot file for adjust of status within the US.

Sorry...that is the way it happens.

[Singers 0]

I have to agree with Desert Fox.

We adjusted from VWP with an I-130 already approved. You are still adjusting (based on marriage from USC) from whatever your status was.. we had to get into this in our interview when we had an approved I-130, an abandoned K-3 but adjusted based on his eligibility through the VWP. Our lawyer told us to point out we were adjusting from VWP from the onset and it was in fact, the first question of the interview. What status you are adjusting from does matter. It is a combination of the two that allows you to adjust.

But then again, I'm not a lawyer (yet! heehee) so I could be wrong.

[rebeccajo 14]

fwaguy, a crewman is ineligible. Period.

[zqt3344 21]

Right because it is crystal clear and in black and white, it is the law, they will not be allowed to adjust on a crewman overstaying a visa, they will not be allowed to do this.

First of all, when dealing with such a complicated, convuluted set of laws, rules and regulations hardly anything is CRYSTAL clear. Secondly, I am glad that you are so well versed in this particular section of the INA as to be able give such clear cut guidance.

It is a dirty job but someone on here has to do it!

[Jengles 0]

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.

He does still have his orginal I-94.

[Singers 0]

Crewmen would use an I-95. (Small point but I just thought I'd point it out.)

[payxibka 10,044]

He does still have his orginal I-94.

Well the C/D visa appears to be a statutory bar....