Long overstay, kids, marriage, AOS

[Cullen 0]

Hi to all from newbie!

Me and my wife just filed for AOS, but have some fears because of her overstay.

Here's a story:

She entered US as a tourist, legally in 2003 and her visa/i-94 has expired long tome ago , seven years out of status. I met her in 2004 and we started dating and fell in love, but we couldn't get married because I wasn't USC at that time and she was out of status, but we didn't want to get separated, so she stayed and two years ago we had our twins. I received citizenship three months ago and we got married right away and applied for AOS. Will she receive permanent residence? Our marriage is bona fide, we live together for a long time and have two years old twins born in US. Will we be in trouble? Thanks!

[VanessaTony 3,567]

Hi to all from newbie!

Me and my wife just filed for AOS, but have some fears because of her overstay.

Here's a story:

She entered US as a tourist, legally in 2003 and her visa/i-94 has expired long tome ago , seven years out of status. I met her in 2004 and we started dating and fell in love, but we couldn't get married because I wasn't USC at that time and she was out of status, but we didn't want to get separated, so she stayed and two years ago we had our twins. I received citizenship three months ago and we got married right away and applied for AOS. Will she receive permanent residence? Our marriage is bona fide, we live together for a long time and have two years old twins born in US. Will we be in trouble? Thanks!

She will not be denied because of the overstay itself, that's forgiven on a successful AOS through marriage to a USC. You will need to show proof of a bonafide relationship, and you WILL have an interview.

If she's denied and deported she would face a 10 year ban as overstaying past 365 days means a 10 year ban (after 180 and less than 365 = 3 year ban).

I trust you filed an I-130 as well as the I-485?.. I only ask because of the recent person that said they didnt and he was locked up and facing deportation.

** moved from "Adjustment of Status (Green Card) from Family Based Visas" to "Adjustment of Status from Work, Student, & Tourist Visas" as you are adjusting from a tourist visa and the prior forum is for K1, K2, K3 & K4**

[juliava 80]

You should file for AOS as soon as possible. But carefully and make sure you file everything correctly. There are a lot of users here who overstayed and they got approved (I am one of them). As long as you have a bona fide marriage there shouldn't be any problems. Good luck!

[Cullen 0]

Thanks both of you! Yes, we filed i130 and i-485 concurrently. Will a fact that we have kids, somehow affect this case in a good or bad way?

[Alla 3]

Thanks both of you! Yes, we filed i130 and i-485 concurrently. Will a fact that we have kids, somehow affect this case in a good or bad way?

As for me I think kids are a great sign of bona fide marraige but recently more and more people say that USCIS doesn't care about it.

The most important is living and financial sharing within couple.

If you are together for such a long time and you know each other very well, there is nothing that can be on your way! Even if she will get deported there are millions of ways to remove ban because you have kids. But it's the worst case. I'm sure you will be fine!!

[VanessaTony 3,567]

As for me I think kids are a great sign of bona fide marraige but recently more and more people say that USCIS doesn't care about it.

The most important is living and financial sharing within couple.

If you are together for such a long time and you know each other very well, there is nothing that can be on your way! Even if she will get deported there are millions of ways to remove ban because you have kids. But it's the worst case. I'm sure you will be fine!!

Actually having children has NO effect on a ban (not for overstaying at least and I can't think of any else that they would affect). I don't know why you think it would. The child if born USC's would be able to stay in the US. Separation from one of their parents isn't considered a large enough hardship as they COULD go with the deported parent and come back. Their other parent could keep them in the Us. The other parent could move to the intending immigrants home country WITH the kids.

Kids aren't a sign of a bonafide marriage (they don't hurt and they don't help) because otherwise anyone could get pregnant to anyone and "bam" get a GC. It just doesn't work like that, and I'll say fortunately because I wouldn't want people to think that having kids in a non-loving relationship is a good way to get a greencard...

Basically you will need proof of co-mingling assets and the joining of your life. Stuff like lease/mortgage/title in joint names, bills, phone in both names, letters and cards address to both of you, photos... all sorts of things.

[Alla 3]

Actually having children has NO effect on a ban (not for overstaying at least and I can't think of any else that they would affect). I don't know why you think it would. The child if born USC's would be able to stay in the US. Separation from one of their parents isn't considered a large enough hardship as they COULD go with the deported parent and come back. Their other parent could keep them in the Us. The other parent could move to the intending immigrants home country WITH the kids.

Kids aren't a sign of a bonafide marriage (they don't hurt and they don't help) because otherwise anyone could get pregnant to anyone and "bam" get a GC. It just doesn't work like that, and I'll say fortunately because I wouldn't want people to think that having kids in a non-loving relationship is a good way to get a greencard...

Basically you will need proof of co-mingling assets and the joining of your life. Stuff like lease/mortgage/title in joint names, bills, phone in both names, letters and cards address to both of you, photos... all sorts of things.

Yes, he would be able to apply for hardship as he has twins and they are 2 years old. They can't be without a mother. I've never heard anyone rejected with such young kids. I'm not saying she won't receive a ban, I'm saying she will be able to remove it.

[sachinky 464]

Yes, he would be able to apply for hardship as he has twins and they are 2 years old. They can't be without a mother. I've never heard anyone rejected with such young kids. I'm not saying she won't receive a ban, I'm saying she will be able to remove it.

There is no waiver for having kids or for separation. If the mother, in this hypothetical situation, were to be deported, then she could take the young kids with her. Or the USC father can keep them in the U.S. Or they can all leave the U.S. None of this is considered to be a 'hardship.' Having a kid doesn't entitle you to any sort of immigration benefit and IMO, that's how it should be.

As far as USCIS is concerned, having a kid means that you had sex one time and 'bore the fruit of that union' so to speak. That is about it. If that's all that was required, how many people would be willing to churn out kids (protection-less sex with a USC) in order to get a GC, do ya think?

Edited May 18, 2010 by sachinky

[sachinky 464]

OP, as long as you file the paperwork correctly and there are no other adverse factors against your wife (using someone else's SSN, false claim of USC) you should be fine.

[Brother Hesekiel 2,235]

Your story is straightforward, and so will be your AOS case. I don't see any problems whatsoever on the horizon, and the kids are great proof of a "real" marriage.

[Starburst 4]

Your story is straightforward, and so will be your AOS case. I don't see any problems whatsoever on the horizon, and the kids are great proof of a "real" marriage.

This

I adjusted with a long overstay just fine. Just gather the needed items, and you should be fine

Good Luck!

/starburst

[Alla 3]

There is no waiver for having kids or for separation. If the mother, in this hypothetical situation, were to be deported, then she could take the young kids with her. Or the USC father can keep them in the U.S. Or they can all leave the U.S. None of this is considered to be a 'hardship.' Having a kid doesn't entitle you to any sort of immigration benefit and IMO, that's how it should be.

As far as USCIS is concerned, having a kid means that you had sex one time and 'bore the fruit of that union' so to speak. That is about it. If that's all that was required, how many people would be willing to churn out kids (protection-less sex with a USC) in order to get a GC, do ya think?

First of all, USA is not India and here children are on the first place and their interests will be the most important factor for the judge.

Nobody is saying that having a child will grand you a GC, the point is that it is definitely a plus.

There is no exact list of hardships. Anything can be used as long as you can prove it!

FYI

Extreme hardship can be demonstrated in many aspects of the qualifying relative’s life such as:

* HEALTH - Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the applicant’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term.

* FINANCIAL CONSIDERATIONS - Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents).

* EDUCATION - Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.

* PERSONAL CONSIDERATIONS - Close relatives in the United States and /or the applicant’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.

* SPECIAL FACTORS - Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.

* Any other situation that the applicant feels may help meet the burden of extreme hardship.

[Cullen 0]

Thanks a lot guys for information and advises! Alla, big thanks to you-your posts are very hepful and very informative! I have one more question. My wife didn't use fake ss#, didn't worked illigally, but she did watch one family's kids occasionally for some period of time and they paid her. Do we have to mention this on interview if they'll ask her if she worked while being out of status?

[Alla 3]

Thanks a lot guys for information and advises! Alla, big thanks to you-your posts are very hepful and very informative! I have one more question. My wife didn't use fake ss#, didn't worked illigally, but she did watch one family's kids occasionally for some period of time and they paid her. Do we have to mention this on interview if they'll ask her if she worked while being out of status?

If she is babysitting along with her own children and not more than one other family than it wouldn't be a problem.

In other case your state may require a babysitting license and also she needed to pay taxes.

But in both cases she will be forgiven because you are a citizen! But you should mention it and explain if they ask.

I wish you all the best and don't worry!!!

[Rob and Jill 82]

My wife didn't use fake ss#, didn't worked illigally, but she did watch one family's kids occasionally for some period of time and they paid her. Do we have to mention this on interview if they'll ask her if she worked while being out of status?

Technically if she was paid for babysitting, she worked illegally. However...American teenagers do it all the time, so I would keep quiet about it if it were me.