Overstay and Spousal Sponsorship

PundaSmith

PundaSmith

New Member
1. I got my GreenCard (through EB1 employment sponsorship) in 2013, and will be eligible for citizenship application in about 3 years.

2. My wife entered the US on F1 visa in early 2000, overstayed at the end of her studies in 2005 and hasn't left the country. I am not sure she has accrued unlawful presence yet since her I-94 is noted with D/S. We married in 2012 before I applied for my GreenCard.

3. I wanted to sponsor her for a GreenCard. Since we have a child here and I do not want her to leave the country until her status is resolved, my main course of action is for her to wait here in the US until I become a US Citizen and then apply for her as an immediate relative, in about 3 years.

4. I am also wondering if I can put in an I-130 for her now so that she is in the waiting line. I know there is a risk that she can be deported in the interim, but I am encouraged by 3 facts:

(a) She does not fall into any of the current priorities for deportation: she is not a criminal or a national security threat.
(b) Currently, the F2A category is not retrogressed and there is about 1.5 years wait, so a visa number might be available sooner.
(c) the just released changes to the visa bulletin means that potentially, I can file for adjustment of status for my wife before her priority date become current.

5. My question is it advisable I take this route? What are the drawbacks? What other options do we have a the moment?

Thanks - PS
 
If you are going to go the route of her doing Adjustment of Status once you become a citizen, there is no benefit of filing I-130 now. After you become a citizen, I-130 and I-485 can be filed concurrently.

She cannot file for Adjustment of Status in any non-Immediate-Relative category, because she is not in status. So if she goes through a non-Immediate-Relative category, she will have to do Consular Processing.

I agree that from your description she probably hasn't accrued any unlawful presence, unless there's an immigration proceeding against her that she doesn't know about or something. She hasn't applied for anything from USCIS in the interim, right? because applying for something and being denied while out of status will also trigger unlawful presence. If she has no unlawful presence, she will only need to be out of the US for a short time if she does Consular Processing (to go to the interview and other stuff).

For the non-Immediate-Relative category, it wouldn't make sense for her to immigrate under F2A -- rather, since you guys married before you got your green card, she should just immigrate as your derivative beneficiary, under the same category and priority date as you (which has no wait because EB1 is current). You would file I-824 to initiate her follow-to-join through Consular Processing.
 
ICE might have looked for her. Has her address current with USCIS all the time?
After she gets out of SEVIS they would check her. she might be lucky and totally went through the cracks.
Also without serving NTA I believe they cannot order her deportation but if I were you I'd make sure there's nothing on her name.
 
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