gwizz99

What are the consequences of an overstay if an individual is in the US (overstaying the VWP by two years and still in the USA), whilst at the sametime their US Citizen mother applied for an I-130 (US Citizen applying for a Married Daughter over 21)

Would the overstay essentially break the I-130 application and get them deported anyway?

Noorah101

The filing of the I-130 does not give the daughter any right to stay in the USA. If the daughter continues to stay in the USA, she will remain in overstay and be subject to deportation. If she leaves the USA, she will incur a ban from returning for 10 years.

Rene

gwizz99

So what you are saying is that even if the I-130 was approved sometime down the line (whilst she was still in the US), then the overstay essentially overrules the I-130 and she still gets deported.

Noorah101

I don't think that's what I said, no. I'm saying IF she leaves the USA at any point, whether by her own doing OR by being deported, she will incur a 10-year ban because she overstayed the VWP so long.

Normally, after an I-130 gets approved and a visa number becomes available, the beneficiary will attend a visa interview in their home country. I'm not sure what happens when the benficiary is already in the USA on an overstay. Obviously if she leaves the USA to attend the visa interview, a ban will become effective.

The daughter might want to have a consultation with an immigration attorney to see what will happen to her.

Rene

meauxna

The I-130 approval doesn't mean anything.. it only proves that mother is a USC and daughter is not and that they are mother/daughter.

Daughter needs her visa number (priority date) to be current. She can see when that might be by looking at the Visa Bulletin.

Nothing will stop the overstay clock until her I-485 is accepted.
I-485 can not be filed until a visa number is available (priority date is current).
Daughter is removable (deportable) up until that I-485 is accepted.

ian-mstm

I believe Rene is correct on this. To get an immigrant visa (which is the ultimate result of filing an I-130 plus other stuff) you must attend an interview in your home country, but as soon as you leave the US (even though you're on your way to an immigration interview) a 10-year ban will automatically kick in because of your 2 year overstay. Even if the interview is successful and you get an immigrant visa, you can not return to the US. The ban has priority over the visa. Further, even if you get the visa it has a time limit... you must enter the US within 6 months to activate the thing... which, of course, will be impossible if you have a 10-year ban.

On the somewhat absurd side of things... if, say, you were to divorce and marry a US citizen, you can adjust your status from within the US and the overstay will ultimately be forgiven... but you must not leave the US under any circumstances whatsoever until you have a Green Card in your hands. However, that's probably not an avenue you want to pursue because there would be a lot of immigration "red flags".

Sadly, I don't see any way out for you in your current circumstances.

This doesn't sound like a DIY project... you should seek advice from a qualified immigration attorney who has had specific experience with long overstay issues.

Ian

penguinbar

Hi as some people on here know my fiancee and I were just approved for a fiancee K1 visa. I have worked and befriended with several Irish and UK citizens. here who overstayed on their visa wavers and met , fell in love and married Americans. How on earth were they able to get their greencards and be able to travel back and forth to Ireland and elsewhere without being banned? I know they have done it. They alltold me to bring my fiancce here and get married and then apply for AOSbut I refused because I wanted to do it the legal way and not have him overstay. I have a Scottish friend who overstayed by five years and just got her 10 year Greencard. Another friend is marrying her Scottish fiancee who has been here 3 years. I thought you were supposed to be banned if you overstayed and left the US and tried to get back?

Noorah101

If you overstay, then marry a USC, then get a green card, you are OK to travel by using the green card. The overstay is forgiven by virtue of marriage to a USC.

If they left the USA before receiving their green card, THEN they would incur a ban.

Rene

penguinbar

Thanks . I just didn't understand how so may people seem to do it that way. They allseem to get their Greencards in about 6 months as well! The right way takes alot longer!

Noorah101

To be fair, the AOS part of the whole thing "getting the green card" does take on average about 6 months lately. So it's not really any faster than others who come on the K-1 and adjust status.

Rene

penguinbar

It just doesn't seem fair that no one seems to be getting a penalty for overstayig nd the getting married. Imean they did break the law!

meauxna

Didn't you wonder why all those Americans were suddenly looking so... appealing?
Marriage to a US citizen is the Magic Flying Egg in ImmigrationLandia.

scrubbedexpat099

In this case no harm in Mother filing, if daughter leaves now by the time the Visa number becomes available etc etc then the ban may well be up or getting that way.

And there is always the possibility of another amnesty.

penguinbar

I have been offered tens of thousands over the years to marry several Irish guys so they could get their greencards! Turned it all down for a poor but very sweet and handsome Scot! LOL

Michael

Fairness has never been the hallmark of the INS. In the 1980s, millions of illegals were given priority immigartion status over people who abided by the law. A few years, the McCain/Kennedy bill was introduced to do that again but was barely defeated (about 12 million this time).