Legal after I-485

[zeperf]

My girlfriend has overstayed her F-1 visa by a few months. We plan to get married. After we file the I-485 will she be here legally, or will that not apply because she is not currently in status? Also, do you think we need a lawyer?

[barbarajlw]

My girlfriend has overstayed her F-1 visa by a few months. We plan to get married. After we file the I-485 will she be here legally, or will that not apply because she is not currently in status? Also, do you think we need a lawyer?

Immigration are getting a lot tougher on overstays now and chances of AOS can be slim. As she is a few months over stay she may be deported if you are not married. You would need to get married and then file for AOS and if granted great but you would have to show strong reasons why she stayed and that your relationship strengthened after she came on F1 visa. Otherwise it can cause a ban from entering US for some time. Where is she from? Or she can go back and you file for a K1 visa fiancee. or you marry she return home and you apply for CR-1 spousal visa.
I am sure someone with more knowledge can help you with this one. If she came on F1 visa with then intent of marrying you then it is regarded as immigration fraud.

[zeperf]

She is on an F-1. We met in the States and plan to get married before the AOS.

[catgismo]

overstay isnt an issue, what matters to the immigration is she entered legally, in your case, she entered on F1 visa, overstaying for a few months isnt a big deal at all, but you have to make sure you two will get married first before filing for I130 and I485, once all documents are completed and submitted, you guys should be fine. just so u know, tons of people overstaying over years, some over stays for 10 years etc, my advice is make sure she wont leave the country til all her documents are filed and approved cos if she leaves now with the over stay status, chances are, she wont be able to secure another visa to come to the US. good luck

[barbarajlw]

She is on an F-1. We met in the States and plan to get married before the AOS.

As Catgismo said if you met here then cool all should be fine but get married and fill in the required documents I-130 and I-485, just make sure she does not leave the country till your paperwork is approved. Good luck to you both, And I know that some overstays are not an issue but it's because they can't find all of them but on other sites I have heard some sad stories so just be aware.

[nichole]

The recent changes I have heard about are marrying while on a tourist visa. Those used to be forgiven quite easily, but USCIS has started to crack down on tourists staying on as immigrants. There have been many more denials in 2010 than there used to be.

Is your fiance still a full time student? USCIS says:

When you enter the United States on a student visa, you will usually be admitted for the duration of your student status. That means you may stay as long as you are a full time student, even if the F-1 visa in your passport expires while you are in America. For a student who has completed the course of studies shown on the I-20, and any authorized practical training, the student is allowed the following additional time in the U.S. before departure:

F-1 student - An additional 60 days, to prepare for departure from the U.S. or to transfer to another school.

To answer your other question, she is not legal until she has her greencard, but I think she is allowed to stay while she waits to see if her status from F1 to LPR is approved. But if not approved, all that time counts as overstay. Too bad she didn't do this before her status expired. Now they will surely look at your details more strictly because it looks like a case of "oops, I'm out of status...better find and American to marry asap."

[daru786]

If her I-94 says 'WS' then she will not be banned for 3 or 10 years. Get married, file the required docs and be merry. Make sure that you collect enough proofs, bills, lease, bank statements, insurance and lots of pictures. Everything on how to file, where to file and what to file is available in these forums. You do not need an attorney.
Good Luck