Can my fiancee get her permission to stay without leaving the country after marrying?

G

GrandSportC3

Registered Users (C)
I will become a citizen on July 4th. My fiancee is Mexican citizen and currently legally in the US on a tourist visa. Her I-94 will expire 7/25. I'm planning on filing for a extention for her tourist visa so that she can stay another 6 months. We are planning to get married some time this summer and I wonder what I'll have to do or file to get her permssion to stay and work here. Will she have to go back to Mexico or can she stay during the process (after getting married)?? What forms will I have to file to keep her in the US and get her work permit etc. and what timeframe I'm I looking at?
 
You have two ways to go:

1) You marry her, she goes back to Mexico, you file the I-130 requesting her as your spouse and she goes through consular processing in Mexico.

2) You marry her, she stays here (even if she overstays it will be forgiven), you file the I-130 & I-485 (along with the supporting documents and forms). So she would be adjusting status and her status in the US would be pending until the petition is approved. You can file for I-131 and I-765 for her to be able to travel (if she does not overstay) and work legally.

I would advise against filing for an extension, because for a tourist you will require a strong valid reason to stay. Staying because of marrying an US Citizen at some point is not a valid reason, in fact, it is very likely going to be denied and she will be requested to leave the country within 30 days.

Also, she can not work here legally under a Visitor visa. (Unless she applies to change status, which is another process).

The easiest choice would be choice # 2, for as long as she can overcome the 30-60-90 rule. How long has she been here in the US with you?

Time frame, depends on several factors... You are looking at 4-8 months with choice # 2 (adjustment of status) if it all works out well. And 6-10 months with choice # 1 (consular processing) again if it all works out well.

I advice you to read the stickies on this forum. Specially here: http://www.immigrationportal.com/showthread.php?t=188386

I hope it all goes well for you guys.
 
PraetorianXI said:
The easiest choice would be choice # 2, for as long as she can overcome the 30-60-90 rule. How long has she been here in the US with you?
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She has been here for about 5 months already and her I-94 expires on 7/25.

As I said, I'll become citizen on 7/4, so we'd only have 3 weeks to get married within the time of her legal stay..
So, if we would get married before 7/25 and also file I-130 before 7/25 would I be able to file I-131 and I-765 at that time as she will be still legelly in the country at the date of filing??

Thanks for your help!!
 
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GrandSportC3 said:
As I said, I'll become citizen on 7/4, so we'd only have 3 weeks to get married within the time of her legal stay..
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So what? Since she's adjusting based on marriage to a US citizen, she can adjust at any time, even if she's overstayed by 20 years.

So, if we would get married before 7/25 and also file I-130 before 7/25 would I be able to file I-131 and I-765 at that time as she will be still legelly in the country at the date of filing??
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You would file the I-130, I-485 and I-765. The I-765 has no requirements that she was in legal status, only that she has a pending I-485. The I-131 can be filed even if she has overstayed, provided she has not overstayed by 180 days or more when the I-485 was filed.
 
TheRealCanadian said:
So what? Since she's adjusting based on marriage to a US citizen, she can adjust at any time, even if she's overstayed by 20 years.



You would file the I-130, I-485 and I-765. The I-765 has no requirements that she was in legal status, only that she has a pending I-485. The I-131 can be filed even if she has overstayed, provided she has not overstayed by 180 days or more when the I-485 was filed.
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Thanks a lot!!
 
Yes, do not worry about the overstay. And since she has been here for longer than 90 days before adjusting status (30-60-90 rule) she should be fine.

Do not rush your wedding, plan it and enjoy it. But she can not work or anything until you file the AOS package. Did you read the information in the link I gave you?
 
PraetorianXI said:
Yes, do not worry about the overstay. And since she has been here for longer than 90 days before adjusting status (30-60-90 rule) she should be fine.

Do not rush your wedding, plan it and enjoy it. But she can not work or anything until you file the AOS package. Did you read the information in the link I gave you?
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Yes, I did check the link - thanks!

I wonder about another thing.. If she overstays and we are getting married after her visa expired, aren't they going to ask for documents documenting her legal status in the US at that point? Can we get married here in the US with her being on an expired I-94?

I also wonder what she'll need to do to get her marriage license etc... I was thinking of going to the local court to check on that..
 
All they require is her passport and her Visa Stamp. To prove identity. It does not matter if the I-94 is expired or not.

The two of you need to go to the local courthouse or probate judge office and ask for a marriage license. That is all. I am speaking from experience, your case is exactly the same as mine. Congratulations to your soon to be wife :)
 
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PraetorianXI said:
All they require is her passport and her Visa Stamp. To prove identity. It does not matter if the I-94 is expired or not.

The two of you need to go to the local courthouse or probate judge office and ask for a marriage license. That is all. I am speaking from experience, your case is exactly the same as mine. Congratulations to your soon to be wife :)
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Thanks!!!:)
 
you may want to file for her AOS before July 30. That's when the prices for AOS petitions go up tremendously.
 
Another option just popped up... We never thought of that option before.. My fiancee's sister has been US citizen for a while and she could do the I-130 for my fiancee.. That would get her into the process without us having to rush into the wedding.. That will give us more time to plan and organize the wedding without her overstaying her visa..

Is there any difference in the process if her sister applies for her rather than me (once I'm her husband)? Will it be all the same forms?
 
Yes, a slight difference.

With you it will take less than 1 year, you file I-130 (her priority date is current immediately) and I-485.

With her sister applying for her it would take about 10-12 years, she files I-130 for her (her priority date becomes current in 2017-2019) then she is allowed to file I-485 or do CP... :eek:

Pick one? :rolleyes:
 
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Also, the I-130 does not confer any legal status or start any process. All it does is links to people as relatives before USCIS. She has to file for AOS (I-485) to be "legal" in the USA.

But again, it does not matter if she overstays, it will be forgiven once she marries you and files for AOS. Unless in between, she gets deported :eek: (very unlikely to happen).
 
Thanks for the answers..

We are getting our marriage licenses tomorrow and will marry soon..

Just one more question.. Can I file all the documents at the same time?

Here's what I'm planning on filing:

You would file the I-130, I-131, I-485 and I-765

Do I have to wait for the I-485 to be officially received before filing I-765??

Thanks

Olivier
 
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