spouse immigration status (H-4 overstay & I-130 pending)

J

jlilian

Registered Users (C)
Hello all, I was wondering if any of you have had similar experience or can advise me on this.
My husband is an LPR for almost 5 years, he's trying to fill in an N-400 form (naturalization form). There's a Part 8 that asks about the spouse's immigration status.
The problem is I have been out of status since I came in 2000, I came here legally (H-4) and for some reason my husband's lawyer that took care of his H-1B forgot to include me when he extended his H1B, I have filed I-485 twice just to get driver's license and not to get work even though I could, they were both denied, it's been really really tough and expensive (lawyer cost)living all this year in this limbo situation.
He also applied I-130 for me in 2006 and it's been approved in June 2009 (still waiting for a visa). I know that I-130 doesn't prevent deportation but since i'm low key, not working, i'm "fine".
My question is should my husband put : H-4 overstay and I-130 pending (WAC###) under my immigration status in the N-400?
Because if he just put I-130 pending, won't the DHS officer know that we've been married since before 2000, and question what my status was before I-130?
Should my husband use a lawyer for his N-400? or just apply by himself and be truthful about my status and attach every paper (H-4, I-94, the two denied I-485 and the pending I-130)?

Please help me, any help is appreciated thanks very much!
 
You say in your post that your lawyer for whatever reason forgot to extend your H4 along with your husband's H1. I find that hard to believe because most attorney's use a standard template for H1's and there's always a question related to Spouses.

If you are being accurate, I apologize for the skepticism on my part......The more truthful you are througout this process, the better it'll be for you.
 
jlilian said:
Should my husband use a lawyer for his N-400? or just apply by himself and be truthful about my status and attach every paper (H-4, I-94, the two denied I-485 and the pending I-130)?
Click to expand...

The first part is simple and your husband should not need a Lawyer if his case is straight forward. Your husband will be well advised to report the absolute truth on his N-400. To fail to do so would almost certainly end in his deportation.

The risk is that he will not know what information USCIS will have available to them at the time of his interview. He will have signed the N-400 to tell the truth. At the interview he will be physically sworn to tell the truth. You will be in the computer via the I-485 so the future looks bleak for you.

Your overstay is probably going to end in deportation if you wait. That will mean a long wait (up to 10 years) before you can return. You may want to consider voluntary departure until your husband is a Citizen. Then try to return on a valid Visa and begin the N-400 process for yourself under the 3-year rule.

PLEASE NOTE CAREFULLY...
I am NOT a Lawyer and I have NO idea if the above is good advice or bad, I also have NO idea if it will work as planned. The overstay may already have applied restrictions for your return. Even with your N-400 application, the previous overstay may be regarded as poor moral character and result in a denial.

You really need to consult a good Immigration Lawyer for YOUR situation. I would suggest doing that before your husband lodges his N-400. Once that N-400 ball is rolling, it is a big ball and almost impossible to stop.
 
Do not consider voluntary departure. That will sure kill your chances of coming back in near future.

Let your husband complete his naturalization process and file I-485.
 
Thank you for the feedbacks so far.

All I know is that my husband's H-1B visa was kept getting extended, and the lawyer never extended my H-4 visa at the same time, which was a very costly mistake.

My husband N-400 application I think is pretty straightfoward, he never committed any crime, doesn't owe anything to IRS, never been arrested, etc.

I think if DHS wants to deport me, they would have done so when they rejected the first I-485. Plus, I have a 2 year old daughter who was born here, so I can not just voluntarily deport myself.

I heard the processing time for US citizenship is roughly 9 months now... so I can wait till my husband gets the citizenship and I can get AOS with I-485 right away, is that right?

So should my husband just put: H-4 visa overstay and I-130 pending (WAC###) under my immigration status in N-400?

Is there anybody who filed N-400 in the past with spouse's immigration status overstayed? Were you successful in getting the citizenship?

Thank you for your answers.
 
Search for "spouse illegal naturalization" in google.

I see a lots of hit with answers you are looking for. Good Luck.
 
I was googling it last night, the advices were random, some say only state I-130 pending, some say state only B2 overstay visa...for example.
So my question is: Does my husband need to put only I-130 pending OR H-4 visa overstay and I-130 pending under my immigration status?
Thank you.
 
N400 doesn't take 9 months. Around 3-5.
Your husband''s case is clean. He should apply and get it ASAP
I dont think they can deny his case due to your status.
I-130 should be good enough for your status on his N400. I think you should consult a lawyer on this last one.

But I think the key is for him to get his N400 applied and approved soon.
 
jlilian said:
So should my husband just put: H-4 visa overstay and I-130 pending (WAC###) under my immigration status in N-400?
Click to expand...

He should put the whole truth. If that's the truth then that's what he puts. You will be in a worse situation if he gets tripped up with a lie or half-truth which may lead to deportation.
 
@kaatupaadi: I have a lawyer for my case (for both the denied I-485s and the pending I-130). Do you think since my husband should use a lawyer for his N-400? since i think his case is clean except that he needs to write explanation letter regarding my status.
So only state I-130 pending is enough? Do I need to include the H-4 overstay visa?
Thank you.
 
He can say "Out of Status" in the form, and explain (if asked) during interview. Also, other poster correctly pointed out that in most of the DO it is taking less than 6 months to get citizenship.

Also, once your husband is citizen, you can attach his naturalization certificate (copy) and I-130 receipt (previous) with your I-485. Make sure all the required documents are submitted along with I-485. Once USCIS sends you back receipt notice for I-485, you will be in legal status. And, unless there are any other issue(s) you will get your PR.

As far as I know immediate relative who are "Out of status" can adjust status within USA. And, don't think about traveling outside US till you are done with the process.

jlilian said:
I was googling it last night, the advices were random, some say only state I-130 pending, some say state only B2 overstay visa...for example.
So my question is: Does my husband need to put only I-130 pending OR H-4 visa overstay and I-130 pending under my immigration status?
Thank you.
Click to expand...
 
@Brian: I was also thinking it's better just to tell the whole story about the H-4 and I-130 in the N-400. I was just confused because the answer to this is not very clear on the internet. I believe that if my husband tells everything about my status, DHS has no reason to reject his application because the N-400 is based on his situation not mine.
 
@usnycus: Thank you for your advice, will do what u told me. That's really good... 6 months not too long :) I haven't done any traveling since i found out about the overstay, it really devastated me, haven't seen my brother and nieces in almost 10 years.

When my husband prepares for his N-400, does he need to attach all the papers necessary to explain my overstay? Thank you.
 
Last edited by a moderator:
No.

He can carry them along during interview.

jlilian said:
@usnycus: Thank you for your advice, will do what u told me. That's really good... 6 months not too long :) I haven't done any traveling since i found out about the overstay, it really devastated me, haven't seen my brother and nieces in almost 10 years.

When my husband prepares for his N-400, does he need to attach all the papers necessary to explain my overstay? Thank you.
Click to expand...
 
jlilian said:
So should my husband just put: H-4 visa overstay and I-130 pending (WAC###) under my immigration status in N-400?
Click to expand...
Put H-4 overstay, or out of status. Don't put the I-130 case number or even mention I-130. They ask for immigration status and the I-130 doesn't give you any status, and it is too much information.
 
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