Question:
A friend of me is getting married to a US CITIZEN, and trying to
obtain green card throguh marriage to us a citizen. Spouse is already
in the USA but spouse is out of status. Advise me, what is the best way
to apply and not get decline becaus e of out of status?
Answer:
I believe your friend should hire an attorney. Broadly speaking once
you are married to a US citizen, "out of status" is void - meaning your
friend shouldn't have any problems because of him being out of status/
But after 9/11 everything has changed and rules have tightened.
So , as I said have him/her hire a good attorney
Speak to a immigration lawyer....but the help you get really does depend
on which visa was used to get into the country, the length of the
overstay etc.
If there wasn't any intent to get married, they could apply for AOS, EAD
to work, and depending on length of overstay, apply for AP to travel,
but if the overstay was longer than I think 180 days, don't get it
because they would be under the bar for 3 years, and if overstayed a
year, it would be 10 year bar from entering the states.
Generally speaking, if AOS'ing on the VWP, and there wasn't intent to
marry at the time, the over stay will be forgiven.
alternatively, they could marry and then he could leave the country and
apply for K3 visa, or depending on which country from, could try the DCF
route which is generally a lot quicker.
Being married gets no new status until they have filed for
AOS....so until they do that, he's still out of status and subject
to being deported.
If the person ENTERED the country legally, valid visa and I-94 at the
TIME OF ENTRY, no matter how long the overstay, he/she can apply for a
green card upon marriage to a US Citizen. I've done this for clients
many times. If you call INS on their toll free number they'll tell you
the same thing.
But get the application in as soon as you can......it NEEDS to be taken
care of.
Like I said, until they have filed AOS, there in dodgy ground with an
over stay, puts them in a position to be deportable and depending on
the length of the overstay, subject to a possible bar from entering
the country.
And if they had intent to marriage when they came over using a VWP,
there risking getting the AOS denied and facing visa fraud.
BTW, it's USCIS...you is a bit picky with terminology.
Or maybe they came over on a J1 and have the 2 year HRR.... who knows.
Have your friend consult with an immigration lawyer. You can find one
through www.aila.org .
