LPR petitioning B2 spouse (Visa overstay) Need some help!!!!!

V

ValeVale

New Member
Hello everybody,

I have some concern about wife immigration case. Would anybody have any idea or any experience about this scenario please help me.

I am an LPR (will be eligible for USC in 2021). I've been married with my wife for 5 years now but we used to live in our home country.. My wife came to the US on B2 visa and she overstayed now. we have a 4 year old child.

I have applied I-130 for her in January 2019. Unfortunately we didn't check with a lawyer before we applied, now we know that we have to wait two years to get her date current and adjust her status. since I already applied, what will happen if she doesn't go to the consular interview since she will be here in the USA, can I apply again when I'm a USC? I'm considering to withdraw the petition, but I'm afraid she will be put in removal proceedings if we do so. we really need an advice.

USCIS will sent this approve letter to Visa Center and Visa Center will contact me for more processing. What should I tell the Visa Center? To wait until I become a USC? Will they sent this I-130 back to USCIS after a certain time. and If they sent it back what happen then? Any body have any idea. I make a wrong decision to file the I-130 right now. I should wait until I become a USC.

You answer will be appreciated. Thanks.
 
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She can’t adjust, period. Spouse of LPR is not forgiven overstay and being out of status makes her ineligible for adjustment of status. Moreover she may have incurred a ban, how long has she overstayed for? She needs to leave now to minimize her chances of a ban - if she overstayed less than 180 days no ban, 180-365 days 3 years ban, longer than a year = 10 years ban - and wait in home country for priority date. If there is a ban in place you will need to apply for a waiver as well which may or may not be granted.

By the way + Being eligible to apply n400 in 2021 doesn’t mean you will complete everything in 2021. Some offices are taking over a year to process n400.
 
SusieQQQ said:
She can’t adjust, period. Spouse of LPR is not forgiven overstay and being out of status makes her ineligible for adjustment of status. Moreover she may have incurred a ban, how long has she overstayed for? She needs to leave now to minimize her chances of a ban - if she overstayed less than 180 days no ban, 180-365 days 3 years ban, longer than a year = 10 years ban - and wait in home country for priority date. If there is a ban in place you will need to apply for a waiver as well which may or may not be granted.

By the way + Being eligible to apply n400 in 2021 doesn’t mean you will complete everything in 2021. Some offices are taking over a year to process n400.
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So I can't wait until I'm a citizen to apply again?
 
ValeVale said:
So I can't wait until I'm a citizen to apply again?
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Are you suggesting that your wife remain illegally in the US for another 3-4 years?

She needs to return back to her home country asap. This site provides guidance and help on the legal process. When did her i94 expire?
 
ValeVale said:
So I can't wait until I'm a citizen to apply again?
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While you seem to think it's OK to have someone living and presumably working illegally for years, it's actually not, and you as someone who legally obtained a green card should recognize the issues involved. Even if you want to try fly under the radar for 3 or 4 years, you need to be honest on your n400 application, you understand the penalty of lying on that, right? How comfortable are you going to be filling in that your spouse is living with you without any legal status when applying for citizenship? Yes, they ask the immigration status of the spouse as well as current address, etc. Do you see the potential for trouble brewing?
You may have noticed that this administration is deporting people just for being illegal, not only for crimes etc like before. Adding a deportation onto a record of overstay is going to make the whole process much more difficult. You didn't answer the question about when her i94 expired. Again, your best option - in fact your only real option - given what has already happened is to have her minimize any ban period, so having her leave ASAP is what you need to do.
 
ValeVale said:
Hello everybody,

I have some concern about wife immigration case. Would anybody have any idea or any experience about this scenario please help me.

I am an LPR (will be eligible for USC in 2021). I've been married with my wife for 5 years now but we used to live in our home country.. My wife came to the US on B2 visa and she overstayed now. we have a 4 year old child.

I have applied I-130 for her in January 2019. Unfortunately we didn't check with a lawyer before we applied, now we know that we have to wait two years to get her date current and adjust her status. since I already applied, what will happen if she doesn't go to the consular interview since she will be here in the USA, can I apply again when I'm a USC? I'm considering to withdraw the petition, but I'm afraid she will be put in removal proceedings if we do so. we really need an advice.

USCIS will sent this approve letter to Visa Center and Visa Center will contact me for more processing. What should I tell the Visa Center? To wait until I become a USC? Will they sent this I-130 back to USCIS after a certain time. and If they sent it back what happen then? Any body have any idea. I make a wrong decision to file the I-130 right now. I should wait until I become a USC.

You answer will be appreciated. Thanks.
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Actually, F2A petitions filed before March 2019 can apply for Adjustment of Status (I-485) in June 2019. But, she is not eligible for Adjustment of Status because she is out of status, and in all family-based categories other than the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen), one is not eligible for Adjustment of Status if they have ever been out of status.

You say you will be eligible for naturalization in 2021, so I am assuming you became a permanent resident around 2016 (unless you mean that you interrupted continuous residence and thus have to wait longer), which is less than 5 years ago, so you were married before you became a permanent resident. What category did you immigrate in? Why did your wife not immigrate as your derivative beneficiary?

How long has it been since your wife's I-94 expired? If it's been less than 180 days, she can leave the US without triggering a ban, and wait abroad for about 2 years until she can get an immigrant visa to come back. If it's been more than 180 days, then she doesn't have many good options.

Yes, you could wait until you become a US citizen, and then, assuming she has not been deported by that time, she would immediately be eligible to do Adjustment of Status in the US, without needing a waiver. However, as other people have said, that is a long time to wait and live illegally, and you would have to disclose her illegal status on your naturalization application. If the approved petition is sent to NVC, and she is just waiting in the US and not doing Consular Processing, you might have to call NVC at least once a year so the petition won't be revoked for inactivity.
 
newacct said:
Actually, F2A petitions filed before March 2019 can apply for Adjustment of Status (I-485) in June 2019. But, she is not eligible for Adjustment of Status because she is out of status, and in all family-based categories other than the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen), one is not eligible for Adjustment of Status if they have ever been out of status.

You say you will be eligible for naturalization in 2021, so I am assuming you became a permanent resident around 2016 (unless you mean that you interrupted continuous residence and thus have to wait longer), which is less than 5 years ago, so you were married before you became a permanent resident. What category did you immigrate in? Why did your wife not immigrate as your derivative beneficiary?

How long has it been since your wife's I-94 expired? If it's been less than 180 days, she can leave the US without triggering a ban, and wait abroad for about 2 years until she can get an immigrant visa to come back. If it's been more than 180 days, then she doesn't have many good options.

Yes, you could wait until you become a US citizen, and then, assuming she has not been deported by that time, she would immediately be eligible to do Adjustment of Status in the US, without needing a waiver. However, as other people have said, that is a long time to wait and live illegally, and you would have to disclose her illegal status on your naturalization application. If the approved petition is sent to NVC, and she is just waiting in the US and not doing Consular Processing, you might have to call NVC at least once a year so the petition won't be revoked for inactivity.
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Her I-94 will expire in September 2019. she Haven't overstayed yet.
I went to a lawyer and they said she is not able to adjust because she has to maintain her legal status until adjustment is approved or not, even though June Bulletin says applicants filed before March 2019 can apply.

as you mentioned we married a few years ago, i was in my home country that means I interrupted continuous residence. I immigrate years ago before i got married under my fathers petition.

it is a long time wait we know, we are just evaluating all her options before her visa time expires.
 
My wife came to the US on B2 visa and she overstayed now.

Her I-94 will expire in September 2019. she Haven't overstayed yet.
 
ValeVale said:
Her I-94 will expire in September 2019. she Haven't overstayed yet.
I went to a lawyer and they said she is not able to adjust because she has to maintain her legal status until adjustment is approved or not, even though June Bulletin says applicants filed before March 2019 can apply.
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That lawyer is incorrect. She only needs to maintain status until her I-485 is filed. See USCIS Policy Manual Volume 7 Part B Chapter 4 section G.
For purposes of the bars to adjustment, a nonimmigrant only needs to maintain his or her nonimmigrant status until the time he or she properly files an adjustment application with USCIS so long as the nonimmigrant does not engage in any unauthorized employment after filing the adjustment application.
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ValeVale said:
she Haven't overstayed yet. is the right answer.
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Fabulous, then she can go back before her time is up without any worry of a ban and do it all legally. If you happen to naturalize before her PD is current then you can hurry it up at that stage.
 
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