I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

Hi,

I have been dating / living with an US Citizen whilst she was in the
UK. For the past year she has been in the US and I have been visiting
frequently staying here for approximately 80 days at a time.

On my current visit we have decided to file the I-130 "Petition for
Alient Relative" based on the common-law marriage rules in Colorado.

My main concern is that whilst filing the I-130 and waiting for it to
be processed, my I-94W tourist visa will expire, i.e. I will have been
here for longer than 90 days.

Does anyone know whether it is ok to overstay your I-94W visa whilst
waiting for the I-130 to be processed?

Thanks
Gene

Re: I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

Hope you filed more forms than just the one
and are actually married now ..

Re: I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

I do not believe that the USCIS will recognize the common law marriage recognized in Colorado. I believe it will only recognized civil and religious marriages. There are different opinions as to your overstay. In either case you were incorrect in filing in the manner in which you did. Since you were inside of the US you were to submit the I-130 and the I-485 for adjustment of status, not the I-130 alone. The I-130 does absolutely nothing for you but gives you permission to file the I-485, which permission is automatically granted if you filed both together while living in the US and married to a USC.

Re: I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

"Rete",
> I do not believe that the USCIS will recognize the common
> law marriage recognized in Colorado. I believe it will only
> recognized civil and religious marriages...
That is my understanding as well...
David
[email protected]

Re: I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

Immigration is a federal issue, not a state one.

You need to get married.

You could apply for a K1 Visa as a Fiancee.

Re: I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

"Boiler",
> ...You need to get married...
Thank You, I am (I know this is directed at the OP)... ;-)
David
[email protected]

Re: I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

On Mar 4, 2:16 pm, Ray <[email protected]> wrote:
> > Hi,
>
> > I have been dating / living with an US Citizen whilst she was in the
> > UK. For the past year she has been in the US and I have been visiting
> > frequently staying here for approximately 80 days at a time.
>
> > On my current visit we have decided to file the I-130 "Petition for
> > Alient Relative" based on the common-law marriage rules in Colorado.
>
> > My main concern is that whilst filing the I-130 and waiting for it to
> > be processed, my I-94W tourist visa will expire, i.e. I will have been
> > here for longer than 90 days.
>
> > Does anyone know whether it is ok to overstay your I-94W visa whilst
> > waiting for the I-130 to be processed?
>
> > Thanksi
> > Gene
>
> Hope you filed more forms than just the one
> and are actually married now ..
>
> --
> Posted viahttp://britishexpats.com- Hide quoted text -
>
> - Show quoted text -

I personally live in Colorado and know for a FACT commonlaw marriages
is NOT recognised by USCIS. You need to do the real marriage not just
the commonlaw they don't offer you anything to prove you are now
commonlaw married bar the woman changing her last name but even then
she doesnt even have to take the man's last name. We tried to do it
that way but were informed we couldnt, otherwise we would have filed
sooner then we did. Well actually we did it both ways so I guess I
have 2 anniversaries

Good Luck

Re: I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

1) You had no basis to file I-130 since common law marriage is not recognized as marriage by immigration rules.

2) Even if you were married and correctly filed I-130, the filing of I-130 in and of itself gives you no right to stay in the US while it is being processed.

3) What you need to do is get married for real, and file I-130 along with I-485. It is the filing (and USCIS's acceptance) of I-485 that allows one to remain in the US while the petition is pending. You may also file for work authorization.

4) Since you entered on a non-immigrant visa/VWP, you should consult an attorney before filing I-130 and I-485 and/or staying beyond the date on your I-94W. In many cases it will be all right, but you should have your exact situation evaluated by an immigration attorney.

Re: I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

Thanks to everyone for the useful information. I must clarify two
points:

1) We haven't filed yet mearly have decided to file, so I thnk
everyone for the additional information regarding I-485

2) We have spoke to an Immigration Lawyer and they suggested that
Colorado's common law marriage laws were very liberal and I should
have no problem in submitting under these rules. However I get the
indication from the newsgroup that common law marriages are not
recognized by the USCIS.

Re: I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

I'm curious how you can qualify for a common law marriage when one of the main requirements of common law marriage is cohabitation in the area of jurisdiction. As a tourist, you are not living with your fiancee, only visiting her. This is an important distinction. While Colorado may not care under what circumstances you've been "living" together, USCIS may very well see what you've been doing as a violation of the terms of your VWP if you use it as a basis for saying that you're "living together". Will they? I don't know -- but they could.

I'm also curious why you just don't go ahead and get legally married? Even those in a common law marriage must obtain a divorce if they want to end things, so why the avoidance of the legal marriage?

~ Jenney

Re: I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

Don't you have to send a copy of your marriage license in with the I-130 if you are filing under the marriage section?

Re: I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

Of course. If I were the esteemed ~Dr. Jones~ I would quickly obtain the legal council of a different immigration attorney. This one's advice is just a bit to far out for my tastes and my gut tells me when is out to make a bit of money and truly assist a client.

Perhaps the OP cannot get married for some reason, i.e. a common-law marriage in the UK perhaps. Or the US Citizen might have an issue with a legal ceremony. Or they are just two people who do not believe in the legality of a civil/religious ceremony and that the vows taken in those ceremonies are as meaningless as quoting Byram under a full moon on the 28th of the 11th month.

Re: I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

On Mar 5, 7:04 am, Rete <[email protected]> wrote:
> > Don't you have to send a copy of your marriage license in with the I-
> > 130 if you are filing under the marriage section?
>
> Of course. If I were the esteemed ~Dr. Jones~ I would quickly obtain
> the legal council of a different immigration attorney. This one's
> advice is just a bit to far out for my tastes and my gut tells me when
> is out to make a bit of money and truly assist a client.
>
> Perhaps the OP cannot get married for some reason, i.e. a common-law
> marriage in the UK perhaps. Or the US Citizen might have an issue with
> a legal ceremony. Or they are just two people who do not believe in the
> legality of a civil/religious ceremony and that the vows taken in those
> ceremonies are as meaningless as quoting Byram under a full moon on the
> 28th of the 11th month.
>
> --
> I'm not an attorney. This disclaimer is valid in NYS!
>posted viahttp://britishexpats.com

Dr Jones,
YES commonlaw marriages are very easy here in Colorado. When my
husband and I did it all we had to do was go to the DMV an change my
last name on my drivers licence and sign a paper saying we had known
each other a minium of 6mths. Good thing we did...I was 8mths
pregnant...lol...After signing the paper my picture was taken an new
dl was sent in mail a couple weeks later. I DID NOT recieve anything
bar the new licence which in USCIS eyes WAS NOT considered marriage as
my husband and I could be looked at as brother and sister as we now
had the same last name. We had to do a CIVIL ceremony for USCIS to
recognise that we WERE married and NOT someone with the same last
name. I dont see why you dont just get civil/religious married as
that is just as easy to do just a little more time consuming but
overall also a very easy procedure. I know in the state of colorado
we could have actually married ourselves but decided to do a very nice
simple civil marriage for friends and family to enjoy. Please do it
the right way so you can file correctly cause it will just give you
more heartache down the road if you dont.
Good Luck

Re: I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

On Mar 5, 10:01 am, "K" <[email protected]> wrote:
> On Mar 5, 7:04 am, Rete <[email protected]> wrote:
>
>
>
>
>
> > > Don't you have to send a copy of your marriage license in with the I-
> > > 130 if you are filing under the marriage section?
>
> > Of course. If I were the esteemed ~Dr. Jones~ I would quickly obtain
> > the legal council of a different immigration attorney. This one's
> > advice is just a bit to far out for my tastes and my gut tells me when
> > is out to make a bit of money and truly assist a client.
>
> > Perhaps the OP cannot get married for some reason, i.e. a common-law
> > marriage in the UK perhaps. Or the US Citizen might have an issue with
> > a legal ceremony. Or they are just two people who do not believe in the
> > legality of a civil/religious ceremony and that the vows taken in those
> > ceremonies are as meaningless as quoting Byram under a full moon on the
> > 28th of the 11th month.
>
> > --
> > I'm not an attorney. This disclaimer is valid in NYS!
> >posted viahttp://britishexpats.com
>
> Dr Jones,
> YES commonlaw marriages are very easy here in Colorado. When my
> husband and I did it all we had to do was go to the DMV an change my
> last name on my drivers licence and sign a paper saying we had known
> each other a minium of 6mths. Good thing we did...I was 8mths
> pregnant...lol...After signing the paper my picture was taken an new
> dl was sent in mail a couple weeks later. I DID NOT recieve anything
> bar the new licence which in USCIS eyes WAS NOT considered marriage as
> my husband and I could be looked at as brother and sister as we now
> had the same last name. We had to do a CIVIL ceremony for USCIS to
> recognise that we WERE married and NOT someone with the same last
> name. I dont see why you dont just get civil/religious married as
> that is just as easy to do just a little more time consuming but
> overall also a very easy procedure. I know in the state of colorado
> we could have actually married ourselves but decided to do a very nice
> simple civil marriage for friends and family to enjoy. Please do it
> the right way so you can file correctly cause it will just give you
> more heartache down the road if you dont.
> Good Luck- Hide quoted text -
>
> - Show quoted text -

BTW....I loved saying my vows infront of all my family and
friends...what made it even special when we included my son from a
previous marriage into our vows which was loved by all. Even if we
hadnt done that here in Colorado you can basically do it in about
30mins at the courthouse. Keep in mind though either way USCIS needs
it done the RIGHT WAY

Re: I-94W Overstay whilst waiting for I-130 Petition submission to complete.
 

Once again thank you all for your comments.

I have just phoned the USCIS helpline and they have said the
following:

1. Common-law marriages are not valid.
2. Even if we get married I have to go back to the UK and wait for
the I-130 to be processed, because I am here on a I-94W visa, and
cannot adjust my status.

Therefore my options are:

1. Do option (2) above.
2. File for K-1 so I can come back next time and get married.

Does anyone know how long I will have to wait in the UK for the I-130
to be processed?

and does anyone know the waiting times for the K-1 if I choose that
route?

Thanks
Gene