Newly Married AOS

[thatmatt]

Hello,
We got married on 7th November 2016. I am a US citizen and my wife has overstayed her B2 visa. Her entry was on 04/25/2015. I am in the process of applying her I -130, I - 485 and I - 765 together. We have been living together for a year now and she has been working this whole time illegally and her employer is aware of her status as well. She paid taxes last year and has an ITIN. How do I proceed here with the application? Do I claim that she has been working? Do I ask her to stop working until she can have an EAD and say 'Current Occupation' = 'None' on I - 485? What other forms are required that I am missing? Any help would be greatly appreciated!

[newacct]

She must (and should) be completely honest about her employment. She will need to list her employment the last 5 years anyway, so stopping employment isn't going to help. Her working illegally, either in the past or continuing now, will not affect her Adjustment of Status. She does not have to stop working.

[Adrian Gruber]

Visa Overstay

Hello,
We got married on 7th November 2016. I am a US citizen and my wife has overstayed her B2 visa. Her entry was on 04/25/2015. I am in the process of applying her I -130, I - 485 and I - 765 together. We have been living together for a year now and she has been working this whole time illegally and her employer is aware of her status as well. She paid taxes last year and has an ITIN. How do I proceed here with the application? Do I claim that she has been working? Do I ask her to stop working until she can have an EAD and say 'Current Occupation' = 'None' on I - 485? What other forms are required that I am missing? Any help would be greatly appreciated!

If she overstayed, she may be denied entry the next time you want to visit the United States.

If you do not validate your timely departure from the United States, or, if you cannot reasonably prove you departed within the time frame given to you when you entered, the next time you apply for admission to the U.S., Customs and Border Protection (CBP) may conclude you remained in the U.S. beyond your authorized stay. If this happens, your visa may be subject to cancellation or you may be returned immediately to your point of origin.

In addition to overstaying her visa she will be facing a 10 year bar from re-entering the US.

Seek legal counsel.

[newacct]

If she overstayed, she may be denied entry the next time you want to visit the United States.

If you do not validate your timely departure from the United States, or, if you cannot reasonably prove you departed within the time frame given to you when you entered, the next time you apply for admission to the U.S., Customs and Border Protection (CBP) may conclude you remained in the U.S. beyond your authorized stay. If this happens, your visa may be subject to cancellation or you may be returned immediately to your point of origin.

In addition to overstaying her visa she will be facing a 10 year bar from re-entering the US.

Seek legal counsel.

This is just wrong an irrelevant. She is applying for Adjustment of Status in the US, not seeking entry. And she is completely eligible for AOS. Her not being in status and illegal work are both irrelevant for her AOS.

[thatmatt]

Thank you newacct. That makes it a lot easier on our end being honest and that exactly what we will do. Of course it is a 100% legit marriage except that we need to be able to prove it to the immigration officers:-) Thanks again!

[newacct]

Oh and make sure she never claimed to be a US citizen (e.g. checked US citizen on an I-9 form). If she has been working as a contractor and thus didn't need to complete an I-9, or her employer didn't ask her to complete an I-9, then she's okay.

[kels42]

This is just wrong an irrelevant. She is applying for Adjustment of Status in the US, not seeking entry. And she is completely eligible for AOS. Her not being in status and illegal work are both irrelevant for her AOS.

I wouldn't say this was completely wrong or irrelevant. I was married in April to my Canadian born husband who was here on a work visa which expired in May or June. We went back to visit his family over the summer and they did not allow him re-entry back in the US because he did not leave after his visa expired. He was sent back to Canada and tried again another day and was let in. So from experience what Adrian Gruber stated does have truth to it. I don't mean this to scare anyone but it is a personal experience that happened to us.

[newacct]

I wouldn't say this was completely wrong or irrelevant. I was married in April to my Canadian born husband who was here on a work visa which expired in May or June. We went back to visit his family over the summer and they did not allow him re-entry back in the US because he did not leave after his visa expired. He was sent back to Canada and tried again another day and was let in. So from experience what Adrian Gruber stated does have truth to it. I don't mean this to scare anyone but it is a personal experience that happened to us.

He was leaving and entering the US. That was the problem. The OP's wife is not leaving or entering the US. It's a completely unrelated situation.

[Adrian Gruber]

Who is not eligible for AOS

Who is Not Eligible for Adjustment of Status:
(Except for Categories with Special Rules Such As 245(i), Asylum, etc.)
A person not admitted or paroled following inspection by an immigration officer;
A person's authorized stay expired before filing i-485;
A person with unauthorized employment;
A nonimmigrant who failed to maintain status (exceptions apply);
A crewman or a person entered in transit without a visa;
A J-1 visitor without a foreign residence waiver;
A K-1 fiance(e) who didn't marry the US citizen petitioner;
A visitor under the Visa Waiver Program, unless applied as an immediate relative of an US citizen;

[Adrian Gruber]

Hello,
We got married on 7th November 2016. I am a US citizen and my wife has overstayed her B2 visa. Her entry was on 04/25/2015. I am in the process of applying her I -130, I - 485 and I - 765 together. We have been living together for a year now and she has been working this whole time illegally and her employer is aware of her status as well. She paid taxes last year and has an ITIN. How do I proceed here with the application? Do I claim that she has been working? Do I ask her to stop working until she can have an EAD and say 'Current Occupation' = 'None' on I - 485? What other forms are required that I am missing? Any help would be greatly appreciated!

Matt, forget everything here thats posted and seek legal counsel.
Everyone here is giving you contradictory advice. Your wife cannot escape the one issue that might call for her removal. Her visa expired before you filed for her AOS. That issue alone will disqualify her.

[newacct]

Who is Not Eligible for Adjustment of Status:
(Except for Categories with Special Rules Such As 245(i), Asylum, etc.)
A person not admitted or paroled following inspection by an immigration officer;
A person's authorized stay expired before filing i-485;
A person with unauthorized employment;
A nonimmigrant who failed to maintain status (exceptions apply);
A crewman or a person entered in transit without a visa;
A J-1 visitor without a foreign residence waiver;
A K-1 fiance(e) who didn't marry the US citizen petitioner;
A visitor under the Visa Waiver Program, unless applied as an immediate relative of an US citizen;

This is wrong. For people in the Immediate Relative category (spouse, parent, or under-21 unmarried child of US citizen), being out of status and having unauthorized employment are irrelevant to AOS.

- - - Updated - - -

Matt, forget everything here thats posted and seek legal counsel.
Everyone here is giving you contradictory advice. Your wife cannot escape the one issue that might call for her removal. Her visa expired before you filed for her AOS. That issue alone will disqualify her.

This is just flat out wrong. His wife does not have to be in status to AOS. This is one of the most basic and well known things in immigration law.

[scorpioz]

Agree with newacct. As long as your are married to USC, you can be out of status however you must show you entered legally. The only problem can be for someone who entered with J-1 visa (if they have a home residency requirement, then even marriage to USC does not fix that, but you can get waivers for that). I would only add, don't travel until you get AP.