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  1. #1
    Join Date
    Nov 2015
    Posts
    28

    Red face Seeking Permanent Residency Based on Marriage After Visa Expired

    My fiancee' and I are planning on getting married soon. Her tourist visa expired over a year ago while she was staying with her brother (who is a US Citizen.) She made Lawful Legal Entry and overstayed her visa. We have been dating for over 6 months. She is not on any government welfare and completely supports herself. She has ZERO criminal activity and arrests. I say these things because im pretty sure they are all taken into account when filing for a Permanent Visa while going through the naturalization process.

    My question is What forms so I need to fill out, when, and in what order. What Precautionary steps do I need to take when filing the paperwork to make sure there are no hang ups. I have heard stories where a husband filed taxes separately that caused a hang up on the Naturalization.

    Can someone point me in the correct direction

  2. #2
    Join Date
    Oct 2006
    Posts
    16,474

    Default Re: Marriage After Visa Expired

    Quote Quoting IamWill80
    View Post
    My fiancee' and I are planning on getting married soon. Her tourist visa expired over a year ago while she was staying with her brother (who is a US Citizen.) She made Lawful Legal Entry and overstayed her visa. We have been dating for over 6 months. She is not on any government welfare and completely supports herself. She has ZERO criminal activity and arrests. I say these things because im pretty sure they are all taken into account when filing for a Permanent Visa while going through the naturalization process.

    My question is What forms so I need to fill out, when, and in what order. What Precautionary steps do I need to take when filing the paperwork to make sure there are no hang ups. I have heard stories where a husband filed taxes separately that caused a hang up on the Naturalization.

    Can someone point me in the correct direction
    I am going to tell you that the correct direction is to hire an immigration attorney after you get married. If you are married her status can be changed while she is in the US since she entered lawfully. If you petition for a fiancÚ visa then she has to return to her home country first and you may have to wait for an extended amount of time for her to be granted a visa...it could be a couple of years even.

    The immigration attorney is an absolute must. The political climate in this country is horrible for immigration right now and you don't want to risk trying to do it without an attorney.

  3. #3
    Join Date
    Nov 2015
    Posts
    28

    Default Re: Marriage After Visa Expired

    Yes I agree

  4. #4
    Join Date
    Sep 2010
    Posts
    19,901

    Default Re: Marriage After Visa Expired

    Are you a US citizen? If not, things are very dire.

    There are essentially two ways if you are a US Citizen. She can stay here, since she entered legally, and adjust her status once she is married to you. The other option is for her to leave and you to apply for a K-1 (fiancee) visa for her to reenter. This is really only a good idea if she needs to go back before you get married. The K-1 gives her an entry and 90 days for you to get hitched. Things are stickier if she would need to leave the US for any reason prior to the six months or so it will take for the adjustment of status to go through.

    The adjustment of status is the same whether she comes in on K-1 or stays here. Once married, you petition for her and she applies for residence. You provide the affidavit of support and possibly a few other ancillary forms. It's best to have an experienced attorney because even notwithstanding the hostile immigration climate these days, just omitting a form can cause substantial delays that put her in limbo for things like travel.

  5. #5
    Join Date
    Nov 2015
    Posts
    28

    Default Re: Marriage After Visa Expired

    Yes Sir All, Also a Federal DoD Employee. Not sure if that makes a Difference.

  6. #6
    Join Date
    Dec 2007
    Posts
    273

    Default Re: Marriage After Visa Expired

    Your employer will not make any difference in the time required or the process. If you are a service member, there are some advantages in specific situations; contact the USCIS's Military Helpline.

    Did she stay past the expiration date of her I-94 authorized stay or the visa in her passport? The I-94 is the key. If it is more than 1 year then she has a 3 year bar to entering the US once she leaves. Overstays are "forgiven" for the immediate relative of a US citizen. This is the well known exemption to allow someone who would have great difficulty otherwise to legitimize their stay in the US. Immigration forums have numerous horror stories of difficulties of US citizens. Remember that the affidavit of support you file applies for as long as 10 years even in the event of a divorce; this is not waivable as part of a settlement or alimony award.

    If she has been working without authorization, that is a serious matter. It is particularly critical to know the basis on which she obtained employment. If she made a claim to be a US citizen, she is in big trouble. I hope she did not commit identity theft in order to do so. Filing of income taxes is required for even illegal work using an ITIN number. If she has not filed her income tax (and FICA taxes if she is self employed), she should do so. She should use a CPA or enrolled agent to be sure they are done correctly for all applicable years.

    On a personal level, knowing someone for 6 months is a relatively short time. Becoming engaged in that amount of time to someone illegally in the US should make you extremely cautious. As for your assertion that she has not committed a crime, overstaying the authorized entry is against US law which is a definition of a crime and makes her deportable. If you intend to make your DOD job your career, you need to really investigate her illegal actions on your future with the federal government.

    You really need to become far more informed. Many couples in your situation file on their own without the use of an attorney. IMO, because of possible effects on your career, I suggest you consult an attorney before you go any further with this relationship and marriage plans.

  7. #7
    Join Date
    Jan 2011
    Posts
    401

    Default Re: Marriage After Visa Expired

    Quote Quoting IamWill80
    View Post
    Yes Sir All, Also a Federal DoD Employee. Not sure if that makes a Difference.
    Are you cleared?

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