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Thread: Differing Answers

  1. #1
    Hello I am new to this forum and am hoping someone can advise me.

    I am presently here on a B2 VISA, from Australia, I came over to have a holiday after my dad passed away - we were always going to travel America together so I am here doing that with him in my heart! Anyway ...while over here I have met a wonderful man that I intend marrying. I have a 5 year visa, but at point of entry was given 6 months, I applied to extend and it was granted until March 25. We can't marry until April, my family is in Australia so it important to me and my man to have his family at the wedding in April.

    I was going to go back home and apply for the K1 Visa but I was advised that I can just marry him and apply for change of status. So really I have 2 problems ..... 1> can I stay and get married in April without applying to extend and 2> Will they send me back and not allow me to stay if I do not apply to extend, I spoke to an attorney in chat on this site and he said it is ok to overstay IF I am marrying and can prove that the marriage is a true one not one just to get a greencard. It is true and I am sure we can prove that to the authorities.

    I know this has probably been asked before and I apologise if that is the case, i have spent alot of time looking through previous posts but haven't found one similar to my case

    Thanking you in anticipation

    Wilma

  2. #2
    Hello I am new to this forum and am hoping someone can advise me.

    I am presently here on a B2 VISA, from Australia, I came over to have a holiday after my dad passed away - we were always going to travel America together so I am here doing that with him in my heart! Anyway ...while over here I have met a wonderful man that I intend marrying. I have a 5 year visa, but at point of entry was given 6 months, I applied to extend and it was granted until March 25. We can't marry until April, my family is in Australia so it important to me and my man to have his family at the wedding in April.

    I was going to go back home and apply for the K1 Visa but I was advised that I can just marry him and apply for change of status. So really I have 2 problems ..... 1> can I stay and get married in April without applying to extend and 2> Will they send me back and not allow me to stay if I do not apply to extend, I spoke to an attorney in chat on this site and he said it is ok to overstay IF I am marrying and can prove that the marriage is a true one not one just to get a greencard. It is true and I am sure we can prove that to the authorities.

    I know this has probably been asked before and I apologise if that is the case, i have spent alot of time looking through previous posts but haven't found one similar to my case

    Thanking you in anticipation

    Wilma

  3. #3
    You can stay and adjust and do the normal paperwork like everyone else. Every lawyer in your town has done probably thousands of your cases. Only thing is -- expect a more grilling interview to make sure you intended on merely "visiting" the us when you entered. But once you get past that part, the rest is just like every other gc interview.

    -= nav =-

  4. #4
    If possible, get married and apply adjustment while your visa still VALID. Once you adjust while your visa expired, you are already in 'overstayed' status. This is okay but you have to think for the future of your case, in case along the road, that something happen and you want to go back to your country, you need to apply for Advance Parole while your case is pending. When they check that you overstayed your visa, you might be rejected at the POE and bar from coming to US (this also depends on the officer at the POE). But if you intend to stay until you get your greencard, that will be okay. But you have to remember it will take about 1 to 2 years (depends on where you live and file your case).

    While adjusting your status, try not to go out from US. But why you want to get married after your visa time expired? It much safer if you apply while your status still valid in US.

    Anyway I'm not a lawyer, pls act accordingly.

  5. #5
    It does not matter if she applies once her visa is expired or not because she will eventually fall out of status while she waits for her AOS.

  6. #6
    Thank you all for your assistance. The reason I cannot marry before April is that my divorce is going through and will not be final until March the 1st. You must be divorced 30 days before remarrying. My X and I have been separated for years we just never bothered with the paperwork.

    The answers I got here are great but still confusing, one saying the I94 can't expire (which is how I read the law) BUT then there is a different rule for change of status for family.- that comment is made in barracks after the law

    If anyone can make it clearer than mud it would be appreciated! I really appreciate your time

  7. #7
    Senior Member
    Join Date
    Oct 2003
    Location
    Raleigh, NC
    Posts
    289
    Well- with immigration matters there is the rule, and then there is the question of what is the repurcussions of breaking the rule. You are correct that the rule says that you need to exit or apply for AOS *before* your I-94 expires. However if you *do* expire, that will not keep you from being able to adjust through an application from an immiediate family member. Also, contrary to Aguila's comment, once you have filed for AOS you are *not* accruing time out-of-status. Also, as long as you entered legally, then you will beable to get a work permit while you are waiting. BTW- in the northeast or out west your AOS may occur in only about 6 months insteead of three years. But if you wanted to be a very good girl and follow all the rules then the most proper thing to do would be to exit before your I-94 expires and then enter again under a K-1 (which your fiance could apply for before you exit, but not before you are divorced and therefore free to marry). I will also add that by not overstaying you are protecting your ability to receive another entry under your tourist visa if for some reason things don't pan out with you and your fiance. Of course you have my best wishes and I hope everything goes well for you both!!

  8. #8
    Pardon the ignorance, but whose law is it that said you couldn't remarry until 30 days after a divorce (Australia or US)? Just a bit curious here. I'll also weight in on getting married and filing the paperwork while you still having the valid visa, just less possibility of problem imho.

    I'm a bit curious with Aguila's response though. Isn't after filing I-485 and receiving A#, her status will automatically become adjustee (not fall out of status when visa eventually expires) ?

    Best wishes for the both of you

  9. #9
    Wilma; I would not advise to you to overstay and marry out of status. It will be most likely possible to AOS eventually, yes, but BCIS will give you a lot of hassles, heartaches, and in the end it will definitly take longer and cost more; they will "loose" your files, they will "accidentily" put you in the back of the line etc.. Now some will take this reply as a negativity or a personal attack or whatever... I'm just telling you what the fact is: BCIS does not "like" aliens who are self-immigrating without giving BCIS the chance to examine your admissiability as an intending immigrant (health/legal/social issues etc.).

    The proper thing to do is to return home and finalize your divorce and then be sponsored as a fiancee K-1 if the merrits still stand. The moment you're accepted and receive your visa, you receive your employment permission at port of entry and very few hassles after that in your aos procedures.

    Also, your beloved father having died so recently may temper your choices at this time and having one violation under your belt and a whole bunch of suspicions and assumptions of burden of proof (the overstay, the untimely divorce proceedings to get married now, short history with your future spouse...) will most definitly cause you more hardship down the road especially if things don't turn out the right way... Good luck!

  10. #10
    >and in the end it will definitly take longer
    >and cost more

    That would also be translated as -- you get your gc faster and easier if you first come with a k1.

    Which is false. Applying for a GC in the US is exactly the same time and process regardless of what visa you came here with. The only difference is, the person who came on a visitor visa will get a more grilling harder interview than someone who's already gone through that at their k1 interview.

    -= nav =-

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