Marriage Expired Tourist Visa. I-130 on File
First of all I am from California. I am a natural born US Citizen.
I want to marry my fiance who has overstayed her tourist visa. She has a I-130 application on file with the INS and is going on their 9th or 10th year of the waiting period.
She has a valid SSN and has been working for a year and a half or so. She files her taxes. There are no criminal records.
Her family's lawyer told them that it shouldn't be a problem if the Visa expired and that not leaving the country would not affect their application.
Should we expect any complications?
What applications do we have to file? when?
Would she have to leave the country?
I was told by a local immigration lawyer that when we marry, her current I130 will be voided. I would have to reapply and would take around 6 months for the process to be completed. Is this true?
Re: Marriage Expired Tourist Visa. I-130 on File
The I130 is filed by someone who will sponsor someone else for naturalization. The actual "owner" of that petition would not be her. So someone else, either a previous husband or a family member must have submitted the I130 petition for sponsorship.
I your cicumstance, if you marry, YOU would file the I130 to sponsor her, then SHE would file an I485 to adjust her status. This I130 would be different if you filed to sponsor her based on your marriage.
If her VISA is expired, then she is "out of status" and would be subject to deportation. However, if you marry and start the process to adjust her status, the overstay will not be a factor in granting her LPR.
Here is a link to the USCIS website and specifically to the becoming an LPR.
http://www.uscis.gov/portal/site/usc...0045f3d6a1RCRD
Re: Marriage Expired Tourist Visa. I-130 on File
Does that mean that she would have to leave the country while the Adjustment of Status is being processed?
Re: Marriage Expired Tourist Visa. I-130 on File
No, she can stay in the country while the adjustment of status is in process. If she leaves now, she will be subject to a 3-10 year ban on re-entry.
If she must leave the country before the LPR is completed, then you need to have her file for Advance parole, which is basically permission to re-enter.