What can we do to remain together during processing?

[steffi]

So, I've been married to my wife for yearly three years and during those three years we already were separated many times and this year my wife was able to come to the US and stay with me and ideally we don't wish to be separated again. I'm applying for my Naturalization but because of the long distance relationship I had with my fiance/wife I've got some stays outside of the US that are longer than six months and so my Naturalization application could result in a charge of abandonment of PR status. So there's already some uncertainty about my Naturalization going thru. I have consulted a lawyer and they believe that I shouldn't have too hard a time defending myself of a such against a charge. My lawyer doesn't have any experience defending such a charge and always comes across as unconfident and unable to suggest the right choice for us to take.

But ideally my wife and I would like to remain together whilst I'm waiting for my Naturalization to go thru and then apply for her whilst she's still here so that we aren't separated during her green card processing. I've got about eight months from my application date before she would hit her 180 days overstay. We've been told that as long as overstay is less than 180 days the consequences are fairly minor but should she decide to not overstay then we are potentially looking at a long separation whilst both my naturalization and her green card applications are processed?

What are the consequences of overstaying less than 180 days? Is any existing b1/b2 visa put at risk if you overstay for less than 180 days? The lawyer tells us we were lucky this time for my wife to join me here and that we shouldn't assume that that will be possible again in the future.

We've already been advised that it would be unwise to apply for an extension for her but since there's some uncertainty of my Naturalization going thru at all I'm not convinced that this is a bad idea. You see we could end up in a situation where we remain separated and then they may deny my Naturalization. Should they do so they may decide to either charge me with abandonment or simply require that I wait longer before Naturalizing. If the latter than it's possible that my wife would still be able to visit on her B1/B2 providing she hasn't already overstayed.

What are my travel restrictions upon becoming a US citizen? ie. is there anyway I can spend time with my wife during the processing of her greencard should we be separated at the time?

 

[Jim Mills]

So, I've been married to my wife for yearly three years and during those three years we already were separated many times and this year my wife was able to come to the US and stay with me and ideally we don't wish to be separated again. I'm applying for my Naturalization but because of the long distance relationship I had with my fiance/wife I've got some stays outside of the US that are longer than six months and so my Naturalization application could result in a charge of abandonment of PR status. So there's already some uncertainty about my Naturalization going thru. I have consulted a lawyer and they believe that I shouldn't have too hard a time defending myself of a such against a charge. My lawyer doesn't have any experience defending such a charge and always comes across as unconfident and unable to suggest the right choice for us to take.

The statement that the lawyer believes that you will not be deemed to have abandoned your GC is not very reassuring since the lawyer admits to having no experience in this area.

But ideally my wife and I would like to remain together whilst I'm waiting for my Naturalization to go thru and then apply for her whilst she's still here so that we aren't separated during her green card processing. I've got about eight months from my application date before she would hit her 180 days overstay. We've been told that as long as overstay is less than 180 days the consequences are fairly minor but should she decide to not overstay then we are potentially looking at a long separation whilst both my naturalization and her green card applications are processed?

Overstays of more than 180 days trigger a mandatory 3 year bar on reentry to the US. Overstays shorter than that do not trigger a mandatory bar but a consular or border official can still deny entry if the officer does not believe that the alien intends to leave the US at the end of the authorized period. Sinc she entered the US on a B visa any statements made to obtain a visa and gain entry need to be carefully examined and considered. You don't want her to stay only to later be deported based on visa fraud.

What are the consequences of overstaying less than 180 days? Is any existing b1/b2 visa put at risk if you overstay for less than 180 days? The lawyer tells us we were lucky this time for my wife to join me here and that we shouldn't assume that that will be possible again in the future.

Exactly what I was concerned about above. An intent to immigrate is incompatible with a B visa so if she stays there is a risk that she will be considered to have committed visa fraud.

We've already been advised that it would be unwise to apply for an extension for her but since there's some uncertainty of my Naturalization going thru at all I'm not convinced that this is a bad idea. You see we could end up in a situation where we remain separated and then they may deny my Naturalization. Should they do so they may decide to either charge me with abandonment or simply require that I wait longer before Naturalizing. If the latter than it's possible that my wife would still be able to visit on her B1/B2 providing she hasn't already overstayed.[/QUOTE]

Generally, people who apply for naturalization who the USCIS believes may have abandoned their visa just get the naturalization denied and are not put into removal proceedings. However, there are exceptions.

What are my travel restrictions upon becoming a US citizen? ie. is there anyway I can spend time with my wife during the processing of her greencard should we be separated at the time? [/QUOTE]

To meet the physical presence test for naturalization you would need to have spent at least 2.5 years in the US in the last five years. Abandonment of the GC is another matter.


If you naturalize, any overstay on your wife's part will not prevent her from adjusting status but you have naturalization issues and even if you do naturalize, if she is deemed to have commited visa fraud whe will probably be deported.

 

[steffi]

Is "Visa Fraud" as you put it an intent to remain here at the time she applied for her original visa? Her original visa is a 10 year multiple re-entry visa that she received long before she ever met me.

Can my wife be accussed of committing visa fraud just be entering the US?

There is no way my wife has ever lied on any previous visa application. It's just that she already had her visa and this was the first visit where she had a chance to use it.

 

[Jim Mills]

Is "Visa Fraud" as you put it an intent to remain here at the time she applied for her original visa? Her original visa is a 10 year multiple re-entry visa that she received long before she ever met me.

Can my wife be accussed of committing visa fraud just be entering the US?

There is no way my wife has ever lied on any previous visa application. It's just that she already had her visa and this was the first visit where she had a chance to use it.

For a definition of Visa fraud, as the Federal Government defines it, see INA sec. 212(a)(6)(C). It could be something as simple as a border official asking "How long do you intend to remain in the US?" or "Why are you coming to the US?" of "What is the purpose of your visit to the US?" and her giving a false answer.