Impact of overstay on I-130

[Robert Xu]

I am an US citizen and dating this girl with an B-1 visa. Her visa will expire in about
one month. We are planning to get married in about one month, and I then will file I-130
for her so she can go to US embassy in her home country to get her green card.
At the same time, I am hoping she can stay a few more months beyond her B-1
visa and before I-130 is approved. Will her overstay affect the I-130 approval in any way?
Many thanks!

 

[Jackolantern]

I am an US citizen and dating this girl with an B-1 visa. Her visa will expire in about one month.

It's the I-94 expiration that matters, not the visa expiration. If the I-94 expires in a month, she should stay and file I-485, or leave the US before it expires, otherwise there will be consequences and risks as described below.

The I-130 gives her no legal status, so if she's caught after her B1 status expires she could get deported. Although the probability is low, there are thousands of visa overstayers who actually do get caught every year and are either deported or had to spend time in an immigration detention center and spend money on lawyers before being released. So deliberately overstaying should not be part of the plan.

Overstaying or deportation won't affect the I-130 approval, but it could hurt her ability to use the I-130 approval to proceed to green card approval. If she overstays for 6 months, she'll be banned from entering the US for 3 years. The ban is 10 years if the overstay is 1 year or more.

Instead of overstaying, simply have her file I-485 along with the I-130 and pursue adjustment of status within the US.

 

[Robert Xu]

Jackolantern

Thank you for the reply. We are still dating and don't believe marriage / filing for I-485 can be done before her
I-94 date expires in one month. We are thinking about her overstay of 3-4 months (definitely less than 6 months) so we can wed and spend some times together before she goes back to her home country waiting for the Green Card.

Just don't want this 3-4 month overstay to affect her chance of getting Green Card. Any comment on this possibility?

 

[Jackolantern]

Jackolantern

Thank you for the reply. We are still dating and don't believe marriage / filing for I-485 can be done before her
I-94 date expires in one month.

Then file it as soon as possible after the marriage. You're a US citizen and she entered legally with a visa*, so she can still file I-485 after an overstay, provided she files it before removal proceedings have been initiated. Once the I-485 is properly filed before removal proceedings, she'll be allowed to stay in the US legally until the case is decided.

Start making the appointment for the I-693 medical now, so the results will be available by the time she's ready to file I-485. The medical can be done before getting married.

Just don't want this 3-4 month overstay to affect her chance of getting Green Card. Any comment on this possibility?

If during that 3-4 month overstay she gets caught and deported, she could be banned from the US for 5 years. Or if they don't physically catch her but they send a notice to appear in immigration court, it will complicate and delay the green card process even if the court case doesn't end in deportation.


*I'm assuming you know the difference between a tourist visa and a visa waiver, and you're sure that she didn't use the visa waiver to enter. If my assumption is wrong, and she used the visa waiver, you have other problems.

 

[TheRealCanadian]

If during that 3-4 month overstay she gets caught and deported, she could be banned from the US for 5 years.

You only get a 5 year bar for expedited removal, which can only happen on entry to the US. If she gets deported, there's a 10-year bar, unless she seeks and is granted voluntary departure prior to the 365th day of overstay.

 

[Robert Xu]

Thank you for the reply.

She came here with a visitor visa, not through Visa Wavier.

If she gets caught or receiving notice to appear before filing I-485, I am thinking she can just request a voluntary departure as the TheRealCanadian said in his post. From my research, the request for voluntary departure is almost always granted if one has no criminal history or criminal case against him pending. If she is granted voluntary departure and her overstay is only 3-4 month, no ban should be put on her. Then, I can file I-130 and she can get her GreenCard at US counsular of her country.

This seems to be pretty safe. Any comments will be appreaciated.

Then file it as soon as possible after the marriage. You're a US citizen and she entered legally with a visa*, so she can still file I-485 after an overstay, provided she files it before removal proceedings have been initiated. Once the I-485 is properly filed before removal proceedings, she'll be allowed to stay in the US legally until the case is decided.

Start making the appointment for the I-693 medical now, so the results will be available by the time she's ready to file I-485. The medical can be done before getting married.


If during that 3-4 month overstay she gets caught and deported, she could be banned from the US for 5 years. Or if they don't physically catch her but they send a notice to appear in immigration court, it will complicate and delay the green card process even if the court case doesn't end in deportation.


*I'm assuming you know the difference between a tourist visa and a visa waiver, and you're sure that she didn't use the visa waiver to enter. If my assumption is wrong, and she used the visa waiver, you have other problems.

 

[TheRealCanadian]

That seems about right. If she is put into proceedings I would recommend consulting an attorney before doing anything, but I expect the VD route should be available to her.