Marriage while on business VISA

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DanDada2000

Registered Users (C)
Hello all,

I have a freind who recently came to America and has "fallen" for someone who is not a Citizen but rather a permanent resident. What are her options as far as staying here w/o having to return back to her country?

Her VISA will expire in approximately 3 months at which time she will become illegal. If she marries him, will she be eligible to stay or will she have to go back as per Section 245(i)?

If the person she fell for was a US Citizen rather, wouldn't this make things a lot easier?

Also, she may be pregnant. If she waits to have her baby in the US during which time she will become illegal, will the child being AMERICAN make her eligible to apply for permanent residence or will she have to return to her country w/ her child and then apply for PR?

Any help is greatly appreciated!!!!!
 
DanDada2000 said:
Hello all,

I have a freind who recently came to America and has "fallen" for someone who is not a Citizen but rather a permanent resident. What are her options as far as staying here w/o having to return back to her country?
There is nothing your friend can do. Once she gets married, her husband has to file I-130 for her which might take a couple of years to get approved. Till that time, she has to maintain her own legal status in the US (Like F1, H1)and her husband cannot do anything to help her with the legal status.

Her VISA will expire in approximately 3 months at which time she will become illegal. If she marries him, will she be eligible to stay or will she have to go back as per Section 245(i)?
She could go back or change her status to F1- or a H1 or any other status that lets her stay here legally. Marrying a LPR does not give her any status till she applies for I-485.

If the person she fell for was a US Citizen rather, wouldn't this make things a lot easier?
Yes. It would. She would be classified as the spouse of a USC, would gain legal status immediately after she filed her AOS application and would take a very less time for her to get her GC.

Also, she may be pregnant. If she waits to have her baby in the US during which time she will become illegal, will the child being AMERICAN make her eligible to apply for permanent residence or will she have to return to her country w/ her child and then apply for PR?
The child can apply for her only at the age of 18.

Any help is greatly appreciated!!!!!
Click to expand...
 
>>Also, she may be pregnant. If she waits to have her baby in the US during which time she will become illegal, will the child being AMERICAN make her eligible to apply for permanent residence or will she have to return to her country w/ her child and then apply for PR?
>>>The child can apply for her only at the age of 18.



Actually it’s 21, not 18.
The child has to be 21 years old to be eligible to file for a parent
 
OK, I just want to be perfectly clear on her options. If she marries the guy she likes, she would have to return to her country regardless until such time that her green card comes thru which could take years! If, on the other hand she was marrying a citizen, she would be eligible to stay and get the green card in the US. Thirdly, if she overstays her Visa and then has a baby in the US, she is still not eligible to stay here and would have to wait 21 years to be sponsored by her child? In this third scenario, let's say it doesn't work out w/ her "husband" and the child is now fatherless. According to the immigration laws, she would have to return to her country but the child would not. This leaves the child w/ no parents in the US and would therefore have to return to the mother's country which would present another set of obstacles in the mother's country. What are my freinds options in this scenario?
 
DanDada2000 said:
OK, I just want to be perfectly clear on her options. If she marries the guy she likes, she would have to return to her country regardless until such time that her green card comes thru which could take years! If, on the other hand she was marrying a citizen, she would be eligible to stay and get the green card in the US. Thirdly, if she overstays her Visa and then has a baby in the US, she is still not eligible to stay here and would have to wait 21 years to be sponsored by her child? In this third scenario, let's say it doesn't work out w/ her "husband" and the child is now fatherless. According to the immigration laws, she would have to return to her country but the child would not. This leaves the child w/ no parents in the US and would therefore have to return to the mother's country which would present another set of obstacles in the mother's country. What are my freinds options in this scenario?
Click to expand...

First scenario: She marries this man she likes now, while still in a valid status.
He files I-130 for her (which they know is taking a long time to approve and doesn’t give her any legal status). Then she says here in US illegally for a number of years, has her baby and forgets abut going back home for another 5 years or so.
Her husband naturalizes to US citizen and upgrades his I-130 (or files new one).
Now, like an immediate relative of US citizen she doesn’t have to wait for a visa number, she can file I-485 and for EAD concurrently and start working after two months.
She still cannot leave US thought, not until she has her GC.
They going to the interview together. Since it’s been so many years and if they still live together, plus a kid – her case is very easy to prove to be a bona fide. She gets her GC on a spot. Her overstay is forgiven.

Second scenario: She goes home. They maintain close relationship (mail, e-mail, phone calls, trips to each other countries – which might be a bit expansive). He naturalizes and files for a fiancée visa. She comes to US, maries him, applies for a GC.

Third scenario: didn’t work with that guy, she goes home, takes the baby with her. Applied for a passport for a baby in her home country, so baby has a dual citizenship and
all “bit’s of obstacles” are eliminated. The baby can come to live in US on his own at 16 or 18 (not sure). To be able to file for a parent he should not only meet a certain age, but there are also other requirements like residence and income. Meaning – he can’t live and work in another country all his life and then come over to US at the age of 21 and apply for his mom. It won’t work like that.

Fourth scenario: she goes home and tries to get a F1 or H1 visa to come here and live/work/study in US legally. She can get married to her man and while waiting for her visa number she can travel back home and back to US, while maintaining her status. They raise the baby together and before they know – the interview letter arrives from INS.

Hope she makes right choices in her life and good luck!
 
Hi Jane Green, thanks for the prompt response....

I think she is most likely to lean toward the 1st and 3rd scenario:

In the first scenario, if I understand the laws correctly, according to "section 245", her staying illegally will have violated her agreement to leave once the visa expires and therefore require AUTOMATIC return to the US in order to process any paperwork, EVEN IF her husband put in for her after becoming a citizen. Is this correct?

In the 3rd scenario, I think she would much rather raise her child in the US rather than her home country. If the child is fatherless and she is obligated to return to the US, who gets custody of the child. The child is by law entitled to stay in the US since s/he was born here. Wouldn't it make sense to allow the mother to stay her to raise the child? how does that work?
 
The part that I don't understand...why is already a pre-conception of divorce or separation even if they are not marry?

If she just want to move to the US, there is no need to marry. There are many other alternatives that she can use.

As Jane Green said hope she made a good choice.

Good luck,
 
In the first scenario, if I understand the laws correctly, according to "section 245", her staying illegally will have violated her agreement to leave once the visa expires and therefore require AUTOMATIC return to the US in order to process any paperwork, EVEN IF her husband put in for her after becoming a citizen. Is this correct?
That’s correct. If she stays in USA past her visa expiration date she will violate the low and if caught – she might be deported.
What do you mean “require AUTOMATIC return to the US in order to process any paperwork, EVEN IF her husband put in for her after becoming a citizen” ??
There is no “Automatic return” to US.
I don’t understand what you mean.
If she goes home, she’ll wait for her visa number there, is she stays in US – she waits here. Only after his I-130 gets approved, which might take several years, she would get a chance to come here as his wife.
Also, if she chooses to stay and wait here, with her husband, which is totally natural decision, too bad it’s against the immigration law, and if later she decides to go back home for any reason (family emergency, or getting homesick or whatever) she’ll be banned from entering USA for another 3 or 10 years. Depends on how long she overstayed her visa.
But – if she leaves now, then she won’t be denied another entry later on.


In the 3rd scenario, I think she would much rather raise her child in the US rather than her home country. If the child is fatherless and she is obligated to return to the US, who gets custody of the child.?
Once again – there is no obligation to return to US. If she takes her child home with her - she rises him/her alone. Father can visit and send gift, which he would be obligated by law anyway.
If the father wishes to sue her for a custody in US, then she’ll get papers in a mail and then, only then she will be obligated to come here and attend the court. She must do it (get a visa) on her own, though. The judge will decide what is in the child’s best interest and give a custody to the parent, who can prove to be able to provide better for that child. For example – has better place to live, more money, better educated parent with good employment record, good moral character (no arrests), health insurance and things like that might get a preference.
Parents don’t necessary have to go to the court if they can reach agreement between themselves.
Also, she can file for a child support at any time after child is born.


The child is by law entitled to stay in the US since s/he was born here. Wouldn't it make sense to allow the mother to stay her to raise the child? how does that work?
Logically – yes, but the answer to your question is NO.
Some 30 years ago it did work like that, until it became almost an epidemic abuse of the system by immigrants all over the world coming to US to have their “anchor babies” and to get their Green Cards this way. So nowadays there is no law protecting illegal mother of US born baby. She has to wait for a long-long time, or look for alternative way
Also - giving birth in US is not cheep and she will be responsible for her medical bills before and after the baby is born.
 
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