Married us citizen before i-94 expired, overstayed.

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Latest post Tue, Jan 27 2009 6:32 PM by Kathryn41. 4 replies.
  • Mon, Jan 26 2009 11:39 PM

    • Chel231
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    • Joined on Mon, Jan 26 2009
    • Posts 3

    Married us citizen before i-94 expired, overstayed.

    Okay I'll explain my story... I met my boyfriend online about a year and a half ago (November 2007). We fell in love, even though we had never met. I am a Canadian citizen, and he is an American Citizen. I had never been out of my country, nor had I ever flew on a plane. I decided to come and visit him in his home city Denver, Colorado. So in October of 2008, we decided to purchase a return ticket for me to visit him for a month. Well I had forgot my itinary at home the day we booked the flight. I was pulled into customs and had no proof that I had legal ties to the states, because I had no documents of such proof at that time. They denied me access and told me that I was able to return again when I had the proper documentation following with an itinary. I rebooked my return ticket for November 16th to stay one week. I arrived for my flight with all back up of documentation such as proof I was employed, rent reciepts, bank statements, phone bills in Canada, and my itinary. The boarder officer allowed me access only after I signed for a i-94. He gave me one month to stay, and my expiration date was December 15th. He also mentioned that I was allowed to rebook my return flight if I wanted to stay longer as long as I did not overstay past december 15th.

    I flew to the states met my boyfriend of one year, and instantly knew that everything we shared was real. After that week I decided to stay a bit longer.. As a few weeks went by, we knew that we did not want to seperate, and that we wanted to be with one another for the rest of our lives. We got married December 11th.

    My expiration date on my i-94 B2 Visa was December 15th. I am currently still in the states and have overstayed my visit by 41 days. I was under the impression that if I was a Canadian Citizen that I was allowed to stay in the states for 6 months with no visa.

    My husband and I are worried that he might goto jail because I have overstayed, and that it would be considered 'harboring an immigrant'. We are also worried that if we applied for further visa's like a spousal visa. That I will not be approved.

    I would like to know what our options are...and If it is worth staying here and applying for a spousal visa. Or will we have to find an attorney and go through legal proceedings? We don't have that kind of money to afford a lawyer. However, we can come up with the amount to pay for the spousal visa applications.

    If all fails, we were considering moving to Canada, and I trying to make him a permanent resident.

    1) Can my husband goto jail for us getting married, and me overstaying my visa being out of status... even though I legally entered the states and married him before my visa expired?

    2) Can we proceed with applying for a spousal visa even though ive overstayed my b2 visa by 41 days?

    Please, if anyone has answers or has been through a similiar situation as we have..Can you please pass on your information.

    Thank you.
  • Mon, Jan 26 2009 11:40 PM In reply to

    • Chel231
    • Not Ranked
    • Joined on Mon, Jan 26 2009
    • Posts 3

    re: Married us citizen before i-94 expired, overstayed.

    Sorry i meant legal ties to canada. ^^
  • Tue, Jan 27 2009 12:33 AM In reply to

    • Chel231
    • Not Ranked
    • Joined on Mon, Jan 26 2009
    • Posts 3

    re: Married us citizen before i-94 expired, overstayed.

    Id like to also mention that on my i 94 card it says on the back no eos/no cos... but does not have no aos. So that would mean I can adjust my status?
  • Tue, Jan 27 2009 6:32 PM In reply to

    • Kathryn41
    • Top 200 Contributor
    • Joined on Thu, Aug 18 2005
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    • Posts 186

    re: Married us citizen before i-94 expired, overstayed.

    Yes, you can apply to adjust your status. You had no immigrant intent when you flew into the US and decided on the spur of the moment to get married, and then decided to stay and adjust status. That is legal. If you had arrived with the intention of getting married and remaining in the US that would be considered visa fraud and it carries a high price. It is up to you to be prepared to show that you had no intentions on remaining when you arrived. File for the I-485, the I-765 (employment authorization) and the I-130 concurrently. The I-130 is your husband's spousal sponsorship application and that needs to be approved before they will process the I-485, but you are allowed to file them together. Once your file is accepted you will receive a receipt and you have legal status in the US once again.

    While you can also file for the I-131 (Advance Parole), it won't do you much good. Because you have an overstay - even though it isn't enough to cause a ban yet - it could still cause you problems if you decided to leave the US and return on an AP. Plan on staying in the US until you get your greencard. Greencards issued to spouses of US citizens 'forgive' any out of status time so the time between when the I-94 expired and the time you applied would not longer be held against you.

    No, your boyfriend is very unlikely to run into any problems with USCIS for harbouring an illegal immigrant but you do want to make yourself legal as soon as you can. The one thing to consider is that if your AOS is not approved you have no rights of appeal for adjusting from a visitor status, so make sure you submit good evidence of your relationship and include everything that is required.

    Good luck and congratulations on your marriage.
  • Fri, Jan 30 2009 10:25 AM In reply to

    Feedback [*=*] re: Married us citizen before i-94 expired, overstayed.

    As long as you last entered the U.S. legally, you can still pursue a green card from within the U.S. based on marriage to a US citizen even though you are an overstay who has worked without authorization.

    There are many criteria an individual must meet in order to qualify for I-485 adjustment of status. Some of the fundamental requirements include last entering the country through proper inspection, being in lawful status in the U.S. and never working without permission in the U.S.

    While most individuals may not adjust status if any of these criteria are not met, the last two are not impediments to an immediate relative wishing to adjust status within the U.S. INA 245(c) bar to adjustment because the person lacks current lawful status or the person worked without authorization does not apply to immediate relatives (spouses of USCs).

    Since you are here without status you probably want to file proper paperwork as soon as possible before the possibility of being placed into removal proceedings.

    For info on the green card process through marriage to a US citizen see:

    Again, even though you are an overstay, as long as you do not have any other immigration or criminal issues, you still should be eligible to obtain a green card from within the U.S. through your marriage as long as is everything is filed properly.

    In answer to your specific question, I think it is very unlikely that your husband would be charged with harboring an illegal.


    Andrew M. Wilson, Esq.
    Serotte Reich Wilson, LLP
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