QUESTION
What can be done if she overstayed on her J1 Visa and getting married to a Permanent Resident of US?
Asked on Nov 14th, 2013 on Immigration - Washington
More details to this question:
I know I will probably eventually need to find an immigration lawyer regarding my situation but I thought I'd get my research started on here. I met my girlfriend last year in USA, and my girlfriend and I are planning to get married in the next year or two. However this is the situation, she came here from a European country on a J1 visa. I believe based on a summer work travel program. Unfortunately, she overstayed her visa and it has been 2 years since she overstayed. As for me, I am a Canadian citizen and I also have a Permanent residence card in the US. I moved to the USA a year ago and now I am working full time. We plan on getting married in the USA and getting settled down here. However, her status is up in the air as I know she can marry me but since I am only a green card holder here, that doesn't grant her automatic access to the green card. What are our options at this point? Is there any point to get married in Canada for her to get a PR card in Canada? We want to build our life in the US as I am working here, so does that help me at all? Please enlighten me with what my options are! Thank you so very much.
3 ANSWERS
You can petition for her as soon as you get married if you are a US permanent resident and she will have her green card within the year, most likely, given the current processing times.
Answered on Dec 12th, 2013 at 2:49 AM
Civil Litigation Attorney serving New York, NY
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Havens & Lichtenberg PLLC
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Marriage to a permanent resident would have made your fiancee eligible for a green card - if she did not overstay her visa. As it is, the decisive factor is whether her J-1 visa had a 2-year home residency requirement. Some J-1 visas require the visitor to return to her country of citizenship for 2 years before she can come to the U.S. again, in any status. If your fiancee had one of those J-1 visas, you should consider taking her to Canada, because there is very little possibility of legalizing her in the U.S. until she goes back to her country for 2 years. If she did not have a 2-years home residency requirement attached to her visa, then there is an option of waiting until you become a U.S. citizen. With a certificate of naturalization in hand, you will be able to file for your wife's green card, despite all the years of her presence in the U.S. without a visa. However, if she leaves the U.S. for even one day, she will be barred from the U.S. for 10 years (unless you get a waiver, but this gets rather too complicated for an on-line discussion, wouldn't you agree?).
Answered on Nov 22nd, 2013 at 6:36 PM
Business/ Commercial Attorney serving Bellevue, WA
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Lana Kurilova Rich PLLC
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First, determine whether her J1 visa had a two-year return requirement (whether the conditions of her visa required her to return home and spend two years at home before returning to the U.S. in any capacity). If the two-year requirement applies, she will need a waiver. If not (and her visa document should give you the answer), you should be able to file for her adjustment of status here in the U.S.
Answered on Nov 18th, 2013 at 9:03 PM