Green card holder marrying a tourist visa holder

[b3b3g1]

Hello
My friend is a green card holder hand has a few years to apply for his citizenship. His wife is from Europe and here in the USA with tourist visa. Her visa is expiring next month and she will have to go back to her home country and spend 4 months there and then again come back. I was wondering if they apply for Green card can she legally stay in the USA with her tourist visa until her 130 petition is accepted or should she be in her home country until her petition is accepted? I might have misunderstood the process so if my question is off the track please help me to understand. Thank you so much

[newacct]

Hello
My friend is a green card holder hand has a few years to apply for his citizenship. His wife is from Europe and here in the USA with tourist visa. Her visa is expiring next month and she will have to go back to her home country and spend 4 months there and then again come back. I was wondering if they apply for Green card can she legally stay in the USA with her tourist visa until her 130 petition is accepted or should she be in her home country until her petition is accepted? I might have misunderstood the process so if my question is off the track please help me to understand. Thank you so much

No. A spouse of a permanent resident is in the F2A category which has a 2-year wait for visa numbers. Her visitor status does not last long enough for her to be able to file AOS in the US. She must leave and do Consular Processing in her home country for an immigrant visa. Note that acceptance, or even approval, of the I-130 does not give her any ability to enter or stay in the US. She needs to wait until a visa number is available to go to the next step.

If they married before he became a permanent resident, depending on how he became a permanent resident, she may be able to immigrate as his derivative beneficiary, with no wait for visa numbers, in which case she may be able to do AOS now.

[miiki]

I-130 only establishes relationship. It doesn?t grant any sort of status. Since she?s not marrying a USC, if she stayed in the US, she?d need to maintain a valid status until she?d be able file for adjustment in about 2 years. Pretty hard to do on a visitor visa.

She?d need to leave the US, and apply for an immigrant visa through consular processing when her priority date is current in a about 2 years. That process may take another year to get the visa.