I-485 visa overstay 4 years

[axellarcos]

My wife and I are currently debating if we should send in her I-485 application. We would both appreciate if any of you could provide some insight.

Here's the story:

- My wife and I had been dating since 2006.
- We were married out of the country in 2012.
- In 2013 I was a LPR when she came to visit on a B1 visa.
- After a month and a half we decided that she would stay here.
- We applied for the I-130 a month and a half after she arrived, since the priority dates were current.
- We waited past 6 months and her I-94 expired.
- We received an approval for the I-130 but the priority dates were sent back about 2 years.
- I recently became a USC and we have an approved I-130.
- We've been married for almost 5 years now and we have substantial proof of a legitimate marriage (leases, insurance, bank accounts, etc)

Is it safe for us to apply for the I-485? Do any of you see any problems that could arise if we went ahead?

We're mostly worried that the IO would consider her overstay to be fraud. What do you think?

[newacct]

Yes, she can absolutely file I-485 now and shouldn't have problems. That she is out of status is completely irrelevant for her AOS as she is in the Immediate Relative category (spouse, under-21 unmarried child, or parent of US citizen) since you became a US citizen. Since her petition was approved in the F2A category, she should state in her I-485 cover letter that she has upgraded from the F2A category to the Immediate Relative category, and attach a copy of your Certificate of Naturalization. This is important as non-Immediate-Relative categories cannot do AOS when out of status.

There is no fraud if she didn't lie to the officer when entering.

(Actually, if the F2A category was current back in 2013, she could have filed I-130 and I-485 concurrently then when she was still in status. But anyway, better now than never.)

[axellarcos]

Yes, she can absolutely file I-485 now and shouldn't have problems. That she is out of status is completely irrelevant for her AOS as she is in the Immediate Relative category (spouse, under-21 unmarried child, or parent of US citizen) since you became a US citizen. Since her petition was approved in the F2A category, she should state in her I-485 cover letter that she has upgraded from the F2A category to the Immediate Relative category, and attach a copy of your Certificate of Naturalization. This is important as non-Immediate-Relative categories cannot do AOS when out of status.

There is no fraud if she didn't lie to the officer when entering.

(Actually, if the F2A category was current back in 2013, she could have filed I-130 and I-485 concurrently then when she was still in status. But anyway, better now than never.)

I truly appreciate your quick response newacct.

The part that worries us the most is the possibility of the IO considering preconceived intent to immigrate.

My wife bought a round trip flight and didn't lie to the officer on entry.

Do you think that would be enough evidence to prove that she never planned to stay if the IO were to consider this a problem?

(In hindsight we should have filed both forms at the same time, but due to economic reasons we couldn't afford both applications at once)

[newacct]

I truly appreciate your quick response newacct.

The part that worries us the most is the possibility of the IO considering preconceived intent to immigrate.

My wife bought a round trip flight and didn't lie to the officer on entry.

Do you think that would be enough evidence to prove that she never planned to stay if the IO were to consider this a problem?

(In hindsight we should have filed both forms at the same time, but due to economic reasons we couldn't afford both applications at once)

Several old BIA precedents have ruled that AOS for Immediate Relatives cannot be denied for immigrant intent alone.

[axellarcos]

Several old BIA precedents have ruled that AOS for Immediate Relatives cannot be denied for immigrant intent alone.

I really appreciate the information you're providing.

Would immigrant intent and visa overstay qualify as two separate reasons for a AOS to be denied? Or would both be disregarded based on previous BIA precendents?

[newacct]

I really appreciate the information you're providing.

Would immigrant intent and visa overstay qualify as two separate reasons for a AOS to be denied? Or would both be disregarded based on previous BIA precendents?

"Visa overstay" is simply irrelevant for Immediate Relatives. It's not based on BIA precedents but based on the law and regulations. There is a bar for AOS for having been out of status but it does not apply to Immediate Relatives.

[axellarcos]

"Visa overstay" is simply irrelevant for Immediate Relatives. It's not based on BIA precedents but based on the law and regulations. There is a bar for AOS for having been out of status but it does not apply to Immediate Relatives.

Thanks again for all the information and I hope that all will be good in our application.