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  1. #1
    Join Date
    Jan 2010
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    1

    Default Out of Status and Marrying a Lawful Permanent Resident

    I am a green card holder and on Dec 2010 it would be already 4 years and 9 months, so I'll be able to file my application for becoming a citizen, I am planning to marry my girlfriend who has been here in the us for 1yr now, her tourist visa expired last mid of last year '09, she came here legally and she does not have any criminal records or the like. I have read some articles and some say that I should be a citizen first before i can petition her, so I can get her to the higher priority, but our main concern is for her to not get deported, So here are my questions:

    1) If we get married on March 2010, can I file her adjustment of status or do I have to be citizen first before I can file her adjustment of status?

    2) If i file for her adjustment of status after we got married can she get an SSN, a driver's license or state ID?

    3) What is the best thing that we could do so my girlfriend can stay here legally?

    Thank you in advance

  2. #2
    Join Date
    Sep 2005
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    Behind a Desk
    Posts
    98,846

    Default Re: Out of Status and Marrying a Lawful Permanent Resident

    You can marry and petition to adjust her status but, if you file as a LPR, until the petition is granted it won't protect her from deportation (nor will she be able to adjust her status without leaving the country, triggering her ineligibility to return).

  3. #3
    Join Date
    Jan 2007
    Posts
    1,695

    Default Re: Out of Status and Marrying a Lawful Permanent Resident

    The spouse of a legal permanent resident must wait for a visa to become available. You filing for her at this time grants her no right to remain in the US. The current wait for the spouse of a LPR is 5 to 6 years. During that time the spouse must maintain his/her own legal status. Your girlfriend cannot qualify for a change of status since she is currently out of status and would need to exit the US to obtain stamping for a new status. Once she exits, she may be prohibited from entering the US for as long as 10 years depending on her overstay. Since she is illegally present, she may be detained and deported if she remains.

    Overstays are forgiven only for the spouse of a US citizen. Although you may apply for naturalization in Dec. 2010, it will likely be late 2011 (or even 2012)before you actually take the oath based on the processing delays.

    Her best option is to leave immediately before she accumulated a 180 day illegal presence as she would not incur a bar. Overcoming a deportation would complicate her case. Violating US law has consequences; she must make a decision quickly.

    Your girlfriend cannot remain legally in the US at this time.

  4. #4
    Join Date
    Jan 2010
    Posts
    3

    Default Re: Out of Status and Marrying a Lawful Permanent Resident

    Thanks for your reply regarding my post/question.

    Is there any other way where in she doesn't need to leave US? I really don't want to be away from her. If she stay longer and wait til i become citizen will it affect my petition for her in the future?

    Thanks again in advance

  5. #5
    Join Date
    Sep 2005
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    Posts
    98,846

    Default Re: Out of Status and Marrying a Lawful Permanent Resident

    Immediate relatives (notably including spouses) of U.S. citizens may apply for adjustment of status despite a period of overstaying a visa.

    It may well be that her best option (if she has not yet overstayed by 180 days) is to leave before she triggers the three year period of ineligibility (after one year of overstay that becomes a ten year bar). Even if her overstay is greater than 180 days, it may turn out to be her best option; consider consulting an immigration lawyer with the details.

    Otherwise, petitioning for her after naturalizing may be the best option.

  6. #6
    Join Date
    Jan 2010
    Posts
    3

    Default Re: Out of Status and Marrying a Lawful Permanent Resident

    Thanks for your reply, she has not overstayed for >180 days but I don't want her to leave the US,I guess we just have to wait after my naturalization. BTW i have read from one of the posts before that i can file it while i am still LPR and adjust it after i get naturalized do you think this is possible?

  7. #7
    Join Date
    Jan 2007
    Posts
    1,695

    Default Re: Out of Status and Marrying a Lawful Permanent Resident

    Remember that during the time in which she is illegal, she is subject to detention and deportation proceedings. This will further complicate her processing. If she leaves the US during the period before you may file for her, even her marriage to a US citizen will not automatically override the ban she incurs on the basis of her overstay.

    The processing time for naturalization process can be over a year in some locations. Therefore, do not expect to be able to file as soon as you meet the time requirements as there are additional delays you will encounter before you are able to take the oath.

    You can only file as a LPR if she is eligible to adjust status which she is not because she is an illegal overstay.

  8. #8
    Join Date
    Jan 2010
    Posts
    3

    Default Re: Out of Status and Marrying a Lawful Permanent Resident

    I see thanks for the information T53147. I just hope there's still something i can do for my girlfriend

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