I am a natural born US citizen, and my wife is on a waiver from Australia, she has overstayed six months and is pregnant, what should we do?

Thank you for your inquiry about your wife.  I am sure the current situation is quite stressful for the both of you. If your wife last entered the U.S. with inspection under the visa waiver program but is now an overstay, she may be able to file for and obtain her green card from within the U.S. based on marriage to a U.S. citizen.  It is true that while most individuals who are here as overstays and/or have worked without permission are ineligible to obtain permanent resident status from within the U.S., this may not the case if you are applying for permanent resident status based on marriage to a U.S. citizen.  She may still be able to pursue permanent resident status from within the U.S. based on marriage to a U.S. citizen.  This is generally known as the adjustment of status process and requires filing the I-130, I-485, I-765 (work permission), I-131, I-864 affidavit of support, I-693 medical etc.  There are two key issues that need to be reviewed and addressed in her case.  One is to ensure there is no intent problem.  CIS could question her intent when she entered as a visitor but would be now staying permanently to apply for a green card.  CIS may question whether she had a permanent intent when she entered as  a visitor. The second issue has to do with applying for a green card based on marriage after her visa waiver time has expired.  These types of cases have received inconsistent treatment and some CIS offices have approved while others denied.  The issue should be resolved as all CIS offices have been instructed to adjudicate I-485 applications filed by immediate relatives who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits UNLESS the potential beneficiary is the subject of an INA section 217 removal order.  I have a guidance memo from CIS that I can provide you that deals directly with this issue. Overall it may be possible to pursue a green card for your wife from within the U.S., but the case should be reviewed by an immigration attorney experienced in these types of matters.  You should consider initially consulting with an attorney with experience in these matters to fully understand how to properly proceed for your wife. Regards, Andrew M. Wilson, Esq. Serotte Reich Wilson, LLP www.srwlawyers.com awilson@srwlawyers.com