Overstayed Visa, Married to a GC Holder
- Thread starter tugo
- Start date
Sm1smom
Super Moderator
Didn’t you already get your GC in August this year as a DV2023 selectee?
Sorry mom,My wife is overstayed.normally she had to leave
From u.s at September 13th. But we married a4t September 6th and we couldn't find a sponsor that's why we couldn't apply for her greencard.Now she is overstayed what can we do right now? How can apply for her work permit and greencard? What is our options?
Sm1smom
What status was she on? She should leave the US before accruing 180 days of unlawful presence, and wait to do Consular Processing abroad. You would file I-130 petition for her, indicating that she will apply for an immigrant visa at a consulate abroad. Expect the process to take 1-2 years at least.
Even if you guys had enough income for the I-864, she wouldn't have been able to file I-485 for Adjustment of Status in September anyway, because the spouse of a permanent resident is in the F2A category, and this category hadn't been able to file I-130 and I-485 together from September onwards. And she can't file I-485 in this category if she is out of status, so Consular Processing abroad would have still been the only option (unless she stays illegally in the US until you become a US citizen, but that is super risky since you just got your GC so it would take 5-6 years at least).
Right now, she has an easy path to immigrate by leaving before accruing 180 days of unlawful presence, so she wouldn't have to deal with a ban.
She doesn't want to leave, GC can wait 5-6 years doesn't matter but can we get work permit for her ?
Sm1smom
Super Moderator
No, she cannot obtain a work permit, or any other form of legal status in the interim. So she's okay being illegally present in the US, not being able to work, and with the potential of being deported for the next 5 to 6 years? This is not really a matter of what she wants or doesn't what to do. It's a matter of doing the right thing!
If she would trigger a ban upon leaving the US, then I could understand her doing that. But she wouldn't trigger a ban if she leaves now. It's a risk-free relatively fast option, compared to the very high risk of staying illegally for so long. If she gets caught and deported, she gets a ban. Also, you can't predict the timeline for your naturalization; sometimes it takes years from when you apply.
We talked some lawyers and they said asylum?what do you think about that?
Sm1smom
Super Moderator
Okay, so this seems like a frivolous filing for the purpose of circumventing the normal immigration process in order for her to remain in the US. I’m sorry you cannot obtain further guidance on that as this forum does not support such.
Sm1smom
Super Moderator
Being married, regardless of if it was before or after she went OOO does not confer any legal status on your spouse. When you got married is irrelevant at this point. She needs to depart from the US as earlier stated above before she overstay long enough to subsequently incur a ban upon departure, or deportation.
You were fortunate enough to have successfully processed your DV selection via AOS after you (both) entered the US in March on a visitor’s visa with the preconceived intent of filing for AOS. I’m guessing you guys had hoped to do the same with your spouse hence you immediately got married once you got your GC, unfortunately for you the rules are not quite the same. There’s no legal path forward for your spouse at this point.
You were fortunate enough to have successfully processed your DV selection via AOS after you (both) entered the US in March on a visitor’s visa with the preconceived intent of filing for AOS. I’m guessing you guys had hoped to do the same with your spouse hence you immediately got married once you got your GC, unfortunately for you the rules are not quite the same. There’s no legal path forward for your spouse at this point.