Overstayed VWP - Can i still file? Also need pointing in the right direction

[Gibster76]

Hi, first thank you for reading and thanks in advance for any help you can give me.

I came to the USA 2 and a half years ago as my fiance (a born us citizen) was pregnant and due to have our baby. I arrived on the VWP and after the birth of our child we could not bare to be parted again and got married.
At the time we did not have the funds to file for my paperwork and i overstayed my Visa Waiver and am still here to this day as a stay at home dad to our baby while she works.

We thought there would be no way possible for us to file my paperwork with me being here illegally.
Down near the bottom it says:
What if I entered the U.S. on the VWP and overstayed my visa, do I qualify for adjustment of status based on marriage to a U.S. citizen?

Yes.

This is another area of great confusion and misinformation. However, this was caused, in part, by the misapplication or inconsistent application of the law by various USCIS offices.

It was the longstanding policy of the USCIS and the Department of Justice to allow persons who entered the U.S. on the VWP to adjust their status pursuant to the discretion afforded it under section 245 of the Immigration and Nationality Act. This policy, I believe, was the most consistent interpretation of U.S. law. However, sometime in the last two or three years certain USCIS District Offices began denying AOS applications based on marriage to a U.S. citizen filed by applicants who had entered the U.S. on the VWP but overstayed. This 180 degree turn in policy was not consistent across the U.S. nor was there any formal policy change which caused greater uncertainty and confusion for prospective AOS applicants and attorneys alike.

Fortunately, the USCIS recently addressed the issue directly during one of it's meetings with the American Immigration Lawyers Association. In the most recent documentation of this that I am aware of (dated October 21, 2011), the USCIS confirms that it will not longer deny AOS applications filed by persons who entered on the VWP and overstayed their visa as long as the application is otherwise approvable. I have attached a copy of this document.

Now i was wondering if this is still the case and i can apply for my paperwork even with overstaying?
Also if the answer is Yes, which forms do i need to file as its all very confusing to us... is it just the I-130? or is it both the I-130 and the I-485? Just the I-485? Or the I-130 now and I-485 at a later date to spread the cost? And is there anything else i need to do or prepare with the forms?

Thank you again to anyone who can help, as we have never done this so are coming into it blind with very confusing information available.

[zoom123]

Yes you can adjust your status within the USA. Below is the brief explanation for you what to do.

Applying for Adjustment of Status requires submitting a comprehensive package to USCIS emphasizing the legitimacy of the marital relationship as well as the applicant’s eligibility for adjustment of status. The two main forms are:

§ I-130 – Petition for Immediate Relative
§ I-485 – Application to Adjust Status

Additional ancillary forms to be submitted include:

§ I-693, Medical Exam Results
§ I-864, Affidavit of Support (applicable version- If your wife income is not sufficient to support the family ( We don't know how many members are there in the family)

Lastly, to establish or preserve employment eligibility and travel privileges (especially if the foreign national will not continue to maintain their nonimmigrant status or is not in current nonimmigrant status), other forms that may be submitted include:

§ I-765, Application for Employment Eligibility
§ I-131, Application for Advance Parole

Once an application for adjustment of status has been filed, the applicant may not be able to depart the U.S. until advance parole is issued (in certain situations, if the applicant is an H or L nonimmigrant who is concurrently maintaining their nonimmigrant status, they may be able to depart the U.S. without facing adverse consequences). Should an applicant depart the U.S. while the application is pending, but before advance parole is issued, they may be considered to have abandoned their application to adjust status.

Documentation Requirements for Adjustment of Status through Marriage to a U.S. Citizen

Form I-130 – Petition for Alien Relative

The I-130 is the form that the U.S. citizen spouse (Petitioner) must file for their foreign national spouse (Beneficiary). Depending on the U.S. citizen’s location, the form is either filed with USCIS or at an overseas location. If the U.S. citizen is a resident of the U.S. or is temporarily abroad, the form must be filed with the appropriate USCIS Service Center in the U.S. However, if the U.S. citizen is overseas, they can file the form with either a USCIS International Office or a U.S. Consulate, as appropriate.

The purpose of the form is to establish the legitimacy of the marital relationship, therefore, it is imperative to submit evidence of the bona fides of the marital relationship including but not limited to photographs of the couple together and with friends and family at various occasions and events; evidence that the couple co-mingles their assets, such as joint bank account statements, joint credit card bills; copies of mail addressed to the couple at the marital residence; evidence that both spouses have named the other as beneficiary in any life insurance policies; evidence of joint health or vehicle insurance, etc.

Form I-485 – Adjustment of Status

The I-485 is the form that the foreign national spouse must file to apply for adjustment of status within the U.S. The I-485 form inquires about an individual’s status in the U.S., any prior immigration or criminal problems, and any other issues that may cause an individual to be inadmissible to the U.S. or be ineligible to adjust status within the U.S.

One of the fundamental requirements to be eligible to adjust status is that foreign national spouse last entered the U.S. lawfully (i.e. after inspection by U.S. immigration officials). If the foreign national has since failed to maintain status and/or worked without authorization in the U.S., as an immediate relative, they may still be able to adjust their status from within the U.S

Form I-693, Medical Exam Results

The Form I-693 is used to determine whether the foreign national spouse is inadmissible to the United States on medical grounds. The medical examination must be completed by a USCIS approved civil surgeon. A list of USCIS approved civil surgeons can be found at www.uscis.gov.

After the medical examination is completed, the civil surgeon will provide the foreign national spouse with a sealed envelope. The envelope must remain sealed when filed.



Form I-864, Affidavit of Support

There are different versions of the Affidavit of Support requirement, the use of each dependent upon the situation (I-864EZ, I-864, I-864W, I-864A). The I-864 is completed by the U.S. citizen spouse. The purpose of the Affidavit of Support requirement is to demonstrate that the U.S. citizen will be able to provide sufficient financial support to avoid having the foreign national spouse become a public charge.

Form I-864P (updated annually) provides the minimal income guidelines to satisfy the Affidavit of Support requirement. The applicable amount is dependent upon the U.S. citizen’s household size (including the foreign national spouse). If the U.S. citizen spouse does not have enough income and/or assets to meet the income requirements, a Joint Sponsor or Household Member may be used.



Form I-765 – Application for Employment Authorization

The I-765 can be filed concurrently with the adjustment of status paperwork to establish work employment eligibility while the adjustment of status paperwork is pending. Upon approval, the foreign national is issued an Employment Authorization Document (EAD), which is valid for any position with any employer, including for self-employment purposes. In most cases, the EAD is issued within 60-90 days after filing.



Form I-131 – Application for Advance Parole

The I-131 can also be filed concurrently with the adjustment of status paperwork to allow for international travel privileges while the adjustment of status application is pending. Upon approval, the foreign national is issued an Advance Parole Document, which is valid for multiple entries returning to the U.S. In most cases, the Advance Parole Document is issued within 60-90 days after filing.

[Gibster76]

Thank you sooooo much for this, you're the best!

[Gibster76]

Do these both need to be filed at the same time, or can the i-485 be filed alone with the i-130 filed during the 2 year period? If so, does the medical need to go with the i-485 or the i-130?

[zoom123]

Its good file together, you will get interview soon an your case will be finalized.
Medicals goes with I-485.