I-485 Application and Wife

[LisaMarie]

Hi,

I am writing this email on behalf of a friend who is being sponsored by his company for green card. He will have to pay his own legal fees though. However, there is a glitch: his fiancee did overstay her student visa about 4 years ago, and currently in the US without legal papers.

What possible complications can this introduce into the application process for my friend. Would it be better for the guy to get his papers first and then sponsor the lady or file together with the lady?

Thanks in advance - LisaMarie

 

[Jackolantern]

She cannot stay in the US to get a green card together with him, because she's been out of status for so long.

There is a 10-year ban for people who have 1 year or more of unlawful presence in the US. However, assuming she entered the US with an F-1 visa with D/S written on the I-94, it is possible that she is only regarded as being out of status, and not unlawfully present. Under such a situation, the unlawful presence starts only when USCIS or an immigration judge makes a formal determination of the status violation.

If she has never been notified of that, chances are she still is only out of status and not unlawfully present. Which would mean she is eligible to get a green card via a US consulate, together with him (provided they marry before his GC is approved). But then she needs to leave the country before they deport her, because deportation would impose a multi-year ban.

If he becomes a US citizen, she could stay in the US to apply for and obtain the green card through his sponsorship. But that is many years away -- first it may be a number of years* for him to get his green card, then 5 more years for him to become a citizen.

So either she is spending a long time outside the US, or waiting inside the US for a long time without legal status and risking deportation. Either scenario can damage the marriage, especially if kids enter the picture and their mother is deported, so your friend needs to think VEEEEEEEERRRRRY carefully about whether he really wants to marry her.


*unless he qualifies for the faster categories, EB2 ROW or EB1

 

[LisaMarie]

Thanks very much for your reply.

My friend is being sponsored by his University (as a professor) in the EB1 or EB2 category. So that might speed up things a bit, but I can understand the caution about the implications of the marriage. The lady in question had an I-94 with D/S on it - but it is not clear if USCIS has determined that she is out of status. All she indicated is that her University did tell her that it appeared USCIS cancelled her student visa. From what I can glean online, if they get married, she would have to stay in the US for long time time until he becomes naturalized.

Is there any way of finding out if she is really out of status, without alerting the USCIS?

thanks - LisaMarie