Out of Status applying for a Green Card through marriage with Permanent Resident

[tomasz]

It is my first post, so hello everyone!

I need to clarify some misinformation before we submit a I-130 Petition for Alien Relative. I originally had a J-1 exchange visitor visa, after that B-2 tourist extension and in the end was denied a change to F-1. I have been out of status for 4.5 years already (wow! time flies). In the meantime I started living with my fiance who won lottery and got a Green Card in Nov 2013.

Since immigration is a hot topic now, we decided to get married, submit a I-130 and wait until my priority date is current or she becomes a citizen. We did not do it before, because I do not want to cause any issues during her naturalization. Also, according to instructions to I-485, I am not eligible to Adjust my Status because my authorized stay expired and she is not a citizen.

Questions here:
a) can marriage with out of status alien cause trouble during naturalization?
b) will I have to leave the country if my priority date becomes current before she becomes a citizen? I will be subject to 10 year ban.

Please advise.

[Attic]

It is my first post, so hello everyone!

I need to clarify some misinformation before we submit a I-130 Petition for Alien Relative. I originally had a J-1 exchange visitor visa, after that B-2 tourist extension and in the end was denied a change to F-1. I have been out of status for 4.5 years already (wow! time flies). In the meantime I started living with my fiance who won lottery and got a Green Card in Nov 2013.

Since immigration is a hot topic now, we decided to get married, submit a I-130 and wait until my priority date is current or she becomes a citizen. We did not do it before, because I do not want to cause any issues during her naturalization. Also, according to instructions to I-485, I am not eligible to Adjust my Status because my authorized stay expired and she is not a citizen.

Questions here:
a) can marriage with out of status alien cause trouble during naturalization?
b) will I have to leave the country if my priority date becomes current before she becomes a citizen? I will be subject to 10 year ban.

Please advise.

On a serious note, I'll advise you to contact an experience attorney. Your case is complicated and can get you in lots of trouble without proper legal guidance. Good luck.

[newacct]

a) no
b) It doesn't make sense to petition you now in the F2A category, because it will be useless to you before she becomes a citizen anyway, as you cannot AOS, and leaving the US will trigger a ban. If you plan to wait until she is a citizen, then I-130 and I-485 should be filed together when she becomes a citizen.

Another thing you need to check is whether your J-1 had the 2-year home residency requirement.

[tomasz]

thank you newacct!

I thought that filing I-130 now may save some time later and possibly help if rules change for worse.

My J-1 had a 2 year residency waiver.

[newacct]

I thought that filing I-130 now may save some time later and possibly help if rules change for worse.

It doesn't save any time. I-130 and I-485 can be filed concurrently as soon as she becomes a citizen.