Overstay vs. Valid B2 Visa

[jrcable18]

Greetings,

I had an appointment with an immigration attorney today. I informed her that my fiancé and I are getting ready to marry and file for her adjustment of status. My fiancé is currently here on a B2 visitor visa that expires on 9/13. The attorney urged me to marry at a courthouse and file our forms ASAP. She stated that as long as the forms are received by USCIS before her visa expires we shouldn't experience any problems. However, she made it sound as though we would run into issues if we filed after September 13th.

My questions is, what problems would we ecounter if she overstays her visa by less than 180 days and we file for her adjustment of status? Is there truly a benefit to getting these forms filed before it expires?

Thank you.

[newacct]

You are a US citizen, right?

It makes no difference whether she files before or after her status expires (note: when the visa expires is completely irrelevant, as visas are only for entry; I am assuming you mean her status expires then). She could overstay for years and file and still it would make no difference for the AOS. Of course, the sooner she files the better, as the longer she overstays the more chance (though very small) that she could be caught.

[jrcable18]

Yes I am a US Citizen.

Yes, forgive me, her status per her I94 expires on 9/13, not her Visa.

I approached the attorney with the mindset that we plan to file within the next two months. However, when she urged me to have the process started before 9/13 it made me concerned. But with all of the research I have done it didn't seem to make any difference whether she overstayed her visa or was within the limits of her I94, unless she overstayed by more than 180 days which could trigger the bar from entry if she travels abroad pending approval of advanced parole.

Would you advise to seek council from another attorney, or based on your experience, am I in a decent position to move forward on my own and file within the next 30-60 days?

Your time and responses are greatly appreciated.

Best,
John

[scientist2016]

Yes I am a US Citizen.

Yes, forgive me, her status per her I94 expires on 9/13, not her Visa.

I approached the attorney with the mindset that we plan to file within the next two months. However, when she urged me to have the process started before 9/13 it made me concerned. But with all of the research I have done it didn't seem to make any difference whether she overstayed her visa or was within the limits of her I94, unless she overstayed by more than 180 days which could trigger the bar from entry if she travels abroad pending approval of advanced parole.

Would you advise to seek council from another attorney, or based on your experience, am I in a decent position to move forward on my own and file within the next 30-60 days?

Your time and responses are greatly appreciated.

Best,
John

If the case is straight forward i.e., just AOS, then you can do it yourself, and many on this forum have done so. Also, as newacct mentioned her overstay is immaterial as far as AOS is concerned. So, there is no 180 day limit. Moreover, once you file AOS, the beneficiary should not leave the country until AP is received, or else AOS will be denied. It does not matter whether this happens with or without overstay.

[jrcable18]

If the case is straight forward i.e., just AOS, then you can do it yourself, and many on this forum have done so. Also, as newacct mentioned her overstay is immaterial as far as AOS is concerned. So, there is no 180 day limit. Moreover, once you file AOS, the beneficiary should not leave the country until AP is received, or else AOS will be denied. It does not matter whether this happens with or without overstay.

Ok, thank you very much. I appreciate the help.

[jrcable18]

I reached out to the lawyer again. She stated the reason she is advising me to file before 9/13/17 is as follows: She would be (out of status) illegal if case is not received prior to i94 departure date.

I am not exactly sure what this changes in regard to the AOS.

[scientist2016]

Yes, if the AOS petition is not received before the 13th your fiancée's stay would be illegal. However, as newacct pointed out earlier, it does not matter.So, it does not matter if you file by Sep 13th 2017 or in 2025, as far as AOS is concerned. This is the case only for the immediate dependents (spouse, parents, etc.) of citizens. If you were filing for AOS n some other basis, let us say on employment basis for instance, then it does matter whether you were in legal status at the time of application. Once again, in you case, it does not matter.