Post
by Kayalami » Mon Dec 06, 2004 6:11 pm
1. The inspection is vital because it allows you to adjust status (AOS) - this is where an alien attains Lawful Permanent Residence/ Green Card in country. However under US law an alien who applies for AOS must have a visa number unless he/she she is an immdiate relative of a US citizen. The USC must be over 21. An IR is the unmarried child under 21 or spouse (of opposite sex) to the USC.
2. Since you are a LPR your spouse must wait for a visa number to be issued by the department of state. AFAIK there is currently a 5 year waiting period for this type of numbers i.e. they are processing applications submitted in 1999.
3. Consequently if the alien spouse is in the US in the circumstances above he/she must maintain status until the number comes up.
4. Your spouse has fallen out of status as of the date marked on his I-94W. Overstaying for more than 180 days (as he has) triggers a 3 year ban and overstaying by 360 days triggers a 10 yr ban from the US upon departure. Likewise he can never again use the VWP and must always apply for a visa (if going to the US temporarily) which will be denied anyway as he has exhibited immigrant intent through the marriage.
5. For the same reasons (overstay) and as per the VWP regulations (read the back of the I-94W) your husband cannot adjust status to any other category e.g. student (F or M).
6. You will likley be a USC before the immigrant number comes up and would be able to aply for his immediate AOS assuming he does not leave the US. Where AOS as the spouse of a USC overstays are paroled (forgiven).
7. I normally advise people in his situation (married to a LPR) to apply for a dual intent visa i.e. it allows immigrant intent such as a H1 or L1 based on their skills and qualifications. However the overstays and subsequent bans make this moot.
8. You will also have to find a way to deal with the potentialy daily nerve wracking aspect of his continued illegal presence in the US ranging from acquiring a driving licence, opening bank accounts, routine stops by the police say for traffice offences etc. Deportation would make things worse as it also requires a waiver (in addition to those for the overstay ban). Requests for waivers prior to completion of the relevant time period expiring are granted only where it can be demonstrated that the USC is undergoing intense suffering due to the absence of the alien spouse from the US.
Sorry this may not be what you wanted to hear - you may wish to talk to a lawyer but I suspect he/she will charge you a hefty fee to tell you what I just have.
