Threepeters

My wife and I married in Africa one year before coming back to the US. She
is a German Citizen (I am a US citzen) and came into the country on a Visa
waiver program. We applied for her green card (i130) and have since received
a notice that her petition was approved. So we are on to the next step in
the proccess.

Our problem is that since the receipt of our approval her visa waiver (VWP)
has expired.

What are the consequences for us since she is techinically her with an
expired Visa waiver?

How can she travel outside the US while the appication process is still
ongoing?

Cheers

Noorah101

Did you also file the I-485 and I-131 along with the I-130? If not, then it means she will be returning to her home country (or whatever consulate you specified) in order to process her immigrant visa. Depending on how long her VWP has expired, she could incur a ban from returning to the USA.

I'd check out your situation with an immigration attorney. It will be worth the one-time fee and consulatation to get facts straight about your case and what approach to take now.

Best Wishes,
Rene

Just Jenney

You didn't say how long she overstayed her I-94/VWP. If she's overstayed for less than one year, she's facing a 3-year ban from the US if she leaves the country. If she's overstayed for more than one year, then she's facing a 10-year ban from the US if she leaves the country.

This is irrespective to whether she has advance parole (AP). In other words, even if she applies for and is granted AP, if she leaves the US she will still trigger a ban (if a ban is applicable to her, of course).

Bottom line is, she should not plan on leaving the US until you both have a consultation with a qualified immigration attorney first.

~ Jenney

hcj1440

Another idea -- even if they didn't file I-485 at the same time as the I-130, I don't think anything prevents them from filing the I-485 now. That way she won't have to leave the US and therefore won't trigger the bar (assuming she would have one).

I agree an attorney consult is a good idea, to review the circumstances of her entry and subsequent filing, if nothing else.

[email protected]

No, he can file the I-485 now (the I-131 is probably useless at this
stage).

He would have to join a copy of the I-130 approval (in lieu of the
I-130).

Noorah101 wrote:
    > > My wife and I married in Africa one year before coming back to the US.
    > > She
    > > is a German Citizen (I am a US citzen) and came into the country on a
    > > Visa
    > > waiver program. We applied for her green card (i130) and have since
    > > received
    > > a notice that her petition was approved. So we are on to the next
    > > step in
    > > the proccess.
    > >
    > > Our problem is that since the receipt of our approval her visa waiver
    > > (VWP)
    > > has expired.
    > >
    > > What are the consequences for us since she is techinically her with an
    > > expired Visa waiver?
    > >
    > > How can she travel outside the US while the appication process is
    > > still
    > > ongoing?
    > >
    > > Cheers
    > Did you also file the I-485 and I-131 along with the I-130? If not,
    > then it means she will be returning to her home country (or whatever
    > consulate you specified) in order to process her immigrant visa.
    > Depending on how long her VWP has expired, she could incur a ban from
    > returning to the USA.
    > I'd check out your situation with an immigration attorney. It will be
    > worth the one-time fee and consulatation to get facts straight about
    > your case and what approach to take now.
    >
    > Best Wishes,
    > Rene
    >
    > --
    > Posted via http://britishexpats.com

Noorah101

Oh, OK. That's good news for the OP.

Rene

Rete

Not completely true. With the approval of the I-130 she can use the approval notice and file for adjustment of status within the US. She is and has been in overstay since the 91st day of the visa waiver. If she leaves now to do consular filing she will not be allowed back into the country for anywhere from 3 to 10 years depending on the length of the overstay.

They did things arse backwards. First by entering the US with the intent to remain and adjust status and second by not filing the complete package, I-130 and I-485.

Cool Dude

DO NOT LEAVE THE US. There are few facts that helps you.

1- The immigrant arrived legally into the country.
2- Marries a US citizen.
3- Has I-130 approval making a visa no. immediatly available to her.

Because of these facts and to some relieve allowed under section 245 of
the immigration law, she can adjust her status in country without
leaving. Actually if she leaves the country, she might face a bar of
3-10 years.

I would consult an immigration lawyer if I were you.

Good Luck.

Just Jenney

Just to clarify two things

1) You omit any mention of a foreigner having intent to immigrate when entering on the VWP. This is a very important distinction that shouldn't be glossed over.

2) The OP and his wife were already married when she entered the US on the VWP. Also, we have no idea whether they intended to adjust her status before or after she entered the country, as the OP doesn't say.

~ Jenney

Cool Dude

Jenney & Mark wrote:
    > Just to clarify two things
    > 1) You omit any mention of a foreigner having intent to immigrate when
    > entering on the VWP. This is a very important distinction that
    > shouldn't be glossed over.
    > 2) The OP and his wife were already married when she entered the US
    > on the VWP. Also, we have no idea whether they intended to adjust
    > her status before or after she entered the country, as the OP
    > doesn't say.
    > ~ Jenney
    > --
    > Posted via http://britishexpats.com

Jenney,

1- A british woman came on the VWP overstayed her visa by 7 years got
married to a USC and she just got her GC.

2- They were married outside the US, but they came in legally, the
immigration would be interested in seeing her passport and the prove
that she came in legally. As long as she has the prove her I-485 should
be adjusted. I agree with you that they did not say whether they
applied or intended to outside the us or not. So I am going on the
facts presented here and not assuming anything else.

As I wrote advising them of consulting a competent immigration lawyer.
I am doing so now again.

Good luck.

threepeters via ImmigrationKB.com

Jenny Mark and All,

Thanks all for the information. I think there were some missing information
in my original post.

My wife entered the US on a VWP and applied for the green card but apparently
missed a very important step which was to apply for adjustment of status at
the same time.

I had been missled by some literature/people I got and now I am face with the
consequences. This is my fault for being confused over the process.

I am wondering that since I missed the step of not applying at the same time
for the adjustment of status (but now will apply) will there be problems for
the application now that we have made this mistake.

I am clear that if she leaves to go home for a visit then we are in a bad
situation which makes my posting very valuable esp since It was not that
clear before..

I have called a lawyer and will be discussing more with all of you when I get
out of our session with the lawyer.

Cheers

Threepeters

Jenney & Mark wrote:
    >> My wife and I married in Africa one year before coming back to the US.
    >> She
    >[quoted text clipped - 18 lines]
    >> Cheers
    >You didn't say how long she overstayed her I-94/VWP. If she's overstayed
    >for less than one year, she's facing a 3-year ban from the US if she
    >leaves the country. If she's overstayed for more than one year, then
    >she's facing a 10-year ban from the US if she leaves the country.
    >This is irrespective to whether she has advance parole (AP). In other
    >words, even if she applies for and is granted AP, if she leaves the US
    >she will still trigger a ban (if a ban is applicable to her, of course).
    >Bottom line is, she should not plan on leaving the US until you both
    >have a consultation with a qualified immigration attorney first.
    >~ Jenney

--
Message posted via ImmigrationKB.com
http://www.immigrationkb.com/Uwe/For...riage/200609/1

Rete

There isn't a problem with doing it your way. The problem your wife has is that she could not get a social security card/number, a work permit and could not travel outside of the US while the I-130 was pending. The biggest and most serious problem was it put her in overstay mode.

With the filing of the I-485 and accompanying documents she can also apply for a work authorization document which will her to apply for a social security number and to work. Under no circumstances should she leave the US until she has her green card.

Just Jenney

So? What's your point? That doesn't change the fact that someone entering the US on a nonimmigrant visa/VWP who has intent to stay permanently before they step foot in the country is in violation of immigration law.

You've got it half right. Obviously one has to prove that they entered the country legally, that goes without saying. But they also have to convince USCIS that they didn't intend to stay permanently before they entered the country legally. How do they do that? I have no idea -- we went the K1 route to avoid any such concerns.

My point is that, on this particular issue (aka, the 10-foot pole), it is not advisable to speak in generalities, which is how I perceived your post.

~ Jenney

Cool Dude

threepeters via ImmigrationKB.com wrote:
    > Jenny Mark and All,
    > Thanks all for the information. I think there were some missing information
    > in my original post.
    > My wife entered the US on a VWP and applied for the green card but apparently
    > missed a very important step which was to apply for adjustment of status at
    > the same time.
    > I had been missled by some literature/people I got and now I am face with the
    > consequences. This is my fault for being confused over the process.
    > I am wondering that since I missed the step of not applying at the same time
    > for the adjustment of status (but now will apply) will there be problems for
    > the application now that we have made this mistake.
    > I am clear that if she leaves to go home for a visit then we are in a bad
    > situation which makes my posting very valuable esp since It was not that
    > clear before..
    > I have called a lawyer and will be discussing more with all of you when I get
    > out of our session with the lawyer.
    > Cheers
    > Threepeters
    > Jenney & Mark wrote:
    > >> My wife and I married in Africa one year before coming back to the US.
    > >> She
    > >[quoted text clipped - 18 lines]
    > >>
    > >> Cheers
    > >
    > >You didn't say how long she overstayed her I-94/VWP. If she's overstayed
    > >for less than one year, she's facing a 3-year ban from the US if she
    > >leaves the country. If she's overstayed for more than one year, then
    > >she's facing a 10-year ban from the US if she leaves the country.
    > >
    > >This is irrespective to whether she has advance parole (AP). In other
    > >words, even if she applies for and is granted AP, if she leaves the US
    > >she will still trigger a ban (if a ban is applicable to her, of course).
    > >
    > >Bottom line is, she should not plan on leaving the US until you both
    > >have a consultation with a qualified immigration attorney first.
    > >
    > >~ Jenney
    > --
    > Message posted via ImmigrationKB.com
    > http://www.immigrationkb.com/Uwe/For...riage/200609/1

She really should not have major problem with overstaying, when you
apply for I-485 make sure that an application for a work permit is
included, because your interview could take up to a year depending on
the backlog in you state and immigration has to give her the Employment
Authorization Document within 90 days after applying with this document
will be able to get ss card and driver l. Also if you apply personally
make sure to keep in save place the receipt for your applications
fees. It is very important since it prove that you applied and paid the
fees.

She should wait until she gets the green card stamp in her passport
before leaving.

Cool Dude

Jenney & Mark wrote:
    > > Jenney & Mark wrote:
    > > > Just to clarify two things
    > > > 1) You omit any mention of a foreigner having intent to immigrate
    > > > when
    > > > entering on the VWP. This is a very important distinction that
    > > > shouldn't be glossed over.
    > > > 2) The OP and his wife were already married when she entered the US
    > > > on the VWP. Also, we have no idea whether they intended to adjust
    > > > her status before or after she entered the country, as the OP
    > > > doesn't say.
    > > > ~ Jenney
    > > > --
    > > > Posted via http://britishexpats.com
    > >
    > > Jenney,
    > >
    > > 1- A british woman came on the VWP overstayed her visa by 7 years got
    > > married to a USC and she just got her GC.
    > >
    > > 2- They were married outside the US, but they came in legally, the
    > > immigration would be interested in seeing her passport and the prove
    > > that she came in legally. As long as she has the prove her I-485
    > > should
    > > be adjusted. I agree with you that they did not say whether they
    > > applied or intended to outside the us or not. So I am going on the
    > > facts presented here and not assuming anything else.
    > >
    > > As I wrote advising them of consulting a competent immigration lawyer.
    > > I am doing so now again.
    > >
    > > Good luck.
    > So? What's your point? That doesn't change the fact that someone
    > entering the US on a nonimmigrant visa/VWP who has intent to stay
    > permanently before they step foot in the country is in violation of
    > immigration law.
    > You've got it half right. Obviously one has to prove that they entered
    > the country legally, that goes without saying. But they also have to
    > convince USCIS that they didn't intend to stay permanently before they
    > entered the country legally. How do they do that? I have no idea -- we
    > went the K1 route to avoid any such concerns.
    > My point is that, on this particular issue (aka, the 10-foot pole), it
    > is not advisable to speak in generalities, which is how I perceived
    > your post.
    > ~ Jenney
    > --
    > Posted via http://britishexpats.com

I really laughed when I read the last post. See, someone missed the
whole idea behind
groups and discussion boards.

When you have a problem you post a question to the board and people on
the board are supposed to give their opinions based on their experience
and first hand knowledge.
Also groups are supposed to be supportive and considerate.

Unfortunately, some people like to argue with others and pass
themselves as the moderators and the experts. All they succeed in
accomplishing is highten the anxiety of the original posters.

I stand by my opinion because it is based on my experience.

I encourage the poster to let us know what the lawyer said.