Pearl Bengay

Hello, I am a permanent resident for 2 years now. I married my husband
in July 2006 and filed for I-130 in September 2006. Unfortunately, we
were too dumb and too occupied that we let his B2 expire November
2006, the month our twin girls were born. We thought we were covered
since I filed my petition when he was still legal in this country;
also I understand that application for his B2 extension will be
questionable anyway since I have already have a petition in place.
Recently, immigration activities has been leaving worried for my
husband's situation. I'm afraid he'll be deported for his overstay and
our twins and I will be left here without known relatives. As of
today, he overstayed for 117 days but letting him leave the country
before 180 days is due (so he can re-apply for another visa and avoid
a ban) is barely an option since 2 babies are involved. But I'm also
concerned that if and when my I-130 petition gets approved and I'm
ready to file for I-485, that it won't get approved because he
overstayed. Also even if I become a US Citizen (whichever comes first)
years from now...I'm still worried that my upgraded petition won't be
honored because of his status. Please enlighten me...I really need
help and soon. Thanks!

scrubbedexpat099

He is here illegally and liable for deportation.

As a Permanent Resident you would have to wait 6 or so year to sponsor him. He would not be able to adjust within the US as overstays are only forgiven on marriage to a USC.

As a Citizen you would be able to sponsor him without him leaving and incurring a ban. But of course first you have to obtain Citizenship and he has to avoid deportation, live out of status that long.

What Visa would he be eligible for to re-enter the US?

Noorah101

The way I see it is, as long as he remains married to you and does not leave the USA, his overstay will be forgiven. But you do realize you're looking at a few more years until you will become a USC and his petition will be upgraded, and he doesn't have work authorization in the meantime.

Come to think of it, once you become a USC, won't he have to return to his home country anyway for the visa processing from the I-130? Or are you thinking of adjusting his status at that time by filing an I-130 and I-485 concurrently? Regardless, I don't think the I-130 is helping him at this point, since he's in the USA with no status.

This is just a layman's view.
Rene

scrubbedexpat099

Usual advice is to file anyway as a PR as you can always upgrade on Citizenship and you have a fall back in case of Citizenship issues.

But in this case you are looking at 3 to 4 years before Citizenship and during that time he would have to stay here illegally, not that many others do not choose this path.

Noorah101

So let's say he stays here illegally for the next 5 years until his wife is a USC. Then what? Would they then ignore the ongoing I-130 and re-file for his AOS instead? Because if they upgrade the I-130 at that point and it goes through the regular process, he'd have to return to his home country for visa processing, which will then incur a ban....wouldn't it?

Rene

Elvira

Why could he not simply file an I-485 at that point?

But a consultation with a lawyer is probably in order to determine the best course of action.

scrubbedexpat099

He entered legally, lets assume without immigrant intent.

Married to a then USC.

Just files to adjust.

Noorah101

Because in order to file for AOS, I thought the I-130 and I-485 had to be filed concurrently. Of course, I could be wrong.

Rene

meauxna

They don't have to be filed concurrently, but they *may* be.

Deedee13

so i supopse back to the original question, what does he do in the meantime whilst waiting for PR to become a citizen? Which has been established is going to take 3 years because she has PR status now for 2. Does he leave and therefore incurs no ban or does he stay and wait whilst out of status. Because overstays are only forgiven on marriage to a USC which she isnt at the moment so it wont apply will it? I am curious how was PR status established in the first place?

meauxna

Well, his options have been spelled out above. Basically, play it straight and leave now or, plan the life of an illegal for the coming 4 years.
She may be eligible to apply in 3, but it takes the better part of a year for most people to complete naturalization.
By overstaying, I think he is now inelligble to change his status to some other type of non-immigrant status.

Normally, the spouse of a PR must maintain their own legal status independant of their PR spouse.

Noorah101

Will his overstay likely be forgiven, even though the OP wasn't a USC when they got married? I guess when she becomes a USC, USCIS doesn't care about the past, just the fact that he is NOW married to a USC, even though he wasn't before?

Rene