Needing to get green card after over stay on I-94W

[nails2002xx]

I'm a UK citizen, I came over to US on a I-94W vistors visa to be with my finacee, we are planning to get married and expecting a baby, before I came over here, we was told by a american lawyer, it was easy to apply for a green card if I came over here on a vistors visa, and then got married, was told we would have to pay a fine for entering the country with intent to stay, but otherwise not a problem. Now I keep seeing different views on this. I have now overstayed on my visa by over 2 months, and we're not married yet. So can someone please tell me where we stand, when we get married, are we able to make me legal in the US without me having to leave or are we screwed????????

[darko]

I am not an expert so wait for moderators to answer, but i will tell you what I know.

First of all, I am surprised lawyer told you to do that. It's MUCH easier to enter on K-1 visa and then adjust your status.
In either case, I don't think you're screwed. Since you were inspected by INS officer at the port of entry and entered the country legally your overstay will most probably be forgiven as long as you get married and she petitions for you.

This is just what I think though. Wait for experts' reply.

[Kayalami]

1. Persons admitted into the US under the VWP may not Adjust status (AOS) with some limited exceptions to include through marriage to a US citizen.

2. However entry on the VWP (non immigrant visa) with the intention to remain in the US (immigrant status) through marriage is fraud. You would need to demonstrate that this was not the case for AOS to be considered by the USCIS. In effect you will have to demonstrate it was a spontaneous rather than a planned event. Expect a tough grilling for your AOS interview. Depending on where you file your AOS based on your state of residence expect upto 3 years for your AOS interview (Texas Service Centre).

4. Likewise it is not possible to AOS when you are out of status but such on the basis of marriage to a USC can proceed because a clause in the Immigration and Nationality Act pardons (forgives) your overstay.

5. Persons not inspected cannot AOS - your only luck so far is that you were inspected. Hang onto your I-94W at all costs..infact make multiple copies of it.

6. You may never use the VWP scheme again since you failed to meet its conditions and must always apply for a B1/B2 visa. As an intending immigrant with no ties to a country outside the US, being an overstayer as well as a VWP national your chances of such are next to nil.

7. If on departing the US, you were out of status for 180 days - 364 days you are banned from re-entering the US for 3 years. The ban is 10 years for an overstay of 365 days. The 10 yr ban is for consecutive overstays i.e. you overstay 2 mths then leave US, return overstay 2 months and so forth until you have 365 days then you are banned for 10 years. The 3 yr ban is not consecutive.

8. Given you are near the ban time limits best to leave the US now and apply for a K1 visa then return to the US to get married. It will be far smoother all round. K1 audjidication via London is about 6-8 months on average. Within 6 mths of marriage you should have your AOS interview and greencard in hand. Much better than the 3 yr VWP AOS route don't you agree?

9. Alternatively based on the issue around family separation what with the new baby get married ASAP (Vegas is often recommended in such cases) and AOS immediatley. You are a nobody as a fiance since such status is not recognised under US immigration law other than when holding a fiance visa.

10. If you do 9 do not leave the US where the bans are applicable until your AOS is completed and you have your greencard. If bans not an issue do not depart without advance parole if AOS ongoing.

Both K1 and VWP AOS require the submission of extensive documentation to include a petition from the US Citizen, bio data - birth certs etc, financial details (I hope she has filed taxes for the last 3 yrs), employment authorisation/ advance parole requests if applicable as well as medical and security checks not to forget filing fees. You may want to consult an immigration attorney ASAP especially if there are any convictions from your past no matter how minor you may deem them to be.

[nails2002xx]

Thank you very much for the information and advice, can see which other way we go, it will be tough, but at least you have answered it's not impossible to sort out, maybe should of come to you for the advice before coming over to the USA, instead of going to the american lawyer for advice. Thanks again.