overstaying and marrying a citizen

[boodle]

What is the name of your state? Georgia.

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my USC bf and i plan on getting married, but i'm still going through a divorce with my european ex-husband right now. this won't be finalized till the end of the year. i have been separated since last year and my bf and i met in manila when he was there. we have been living together for almost a year including the time when we were in manila. his contract ended and he went back here. so i came a few months ago on a tourist visa.

since we don't want to be apart we've decided that i'll just stay here with him till my divorce is settled, which means i'll be overstaying. if i overstay, our option is to get married after my divorce if we want my status to be updated. we know the risk of being denied due to accusation of fraud marriage since we plan to get married right after my divorce, but we have limited options.

he just found out that his company might be sending him back to manila for work before the year ends or early next year on a long term contract. since we don't want to be apart, by then, i would've overstayed. if i leave the country with him at that time without getting married and updating my status, then that means i am banned in the country for 3 years. we know all the risks we're taking.

my questions are:
**if i go back with him at end of the year to manila and get married there after a few months or so, can we apply for a spousal visa there if we want to visit here? will that override the 3 year ban or would the 3 year ban override the petition for spousal visa? can we apply for a spousal visa from there while we are both in manila or does he have to be here in the US to apply for that? cuz i know that you can't file a fiance visa if you're in another country and i dunno if it's the same case with spousal visa.

**what if we get married here and he goes back to manila to work before the update of my status is completed, and i stay here, then he comes back for the immigration interview and then i go to manila to be with him after my status is updated? is that possible? do they allow that? or does he need to be here in the country the whole time during the process?

**we live in GA and GA has new state laws about immigration. will this affect us? like if we want to get married? is getting married considered a benefit of a USC? cuz the new state law says you have to show legality before you can avail of public benefits in the state. or in this case, do we need to get married in another state?

i hope my questions don't sound too stupid. but i would really appreciate any suggestions, comments, or insight on this. please.

[ImmigAttyLana]

If you overstay in the US, once you are legally married, in a bona fide marriage, to a uS citizen, you will be able to adjust status to permanent resident within the US. If you overstay, and overstay by more than 180 days, you should absolutely NOT risk leaving the US because there is no guarantee that the waiver of the 3 year bar will be granted and this is a rather high risk to undertake. Even if you do not overstay, if you depart the US, it will be about a year for the process of filing for your spouse visa and during that time you will not be able to return to the US as a visitor.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

[boodle]

what if i overstay for less than 6 months? let's say 3 months and i leave to go to manila with him and we marry there? because his contract for work there will be about a year or so. we just don't know the exact date he will be sent there but it is by first quarter of next year.

what are the consequences and options if it's less then 180 days? can he file a spousal visa while he's in manila and we're both living there? or does he have to be here in the US to file a spousal visa?

also, this would be my second time overstaying. i was here 15 years ago on a student visa and have overstayed for 4 years. i was underaged that time and left voluntarily when i turned 18. this was aug 1998. but i applied for a tourist visa last year, 8 years after i have gone back, and it got approved so i guess the bar from the previous issue have been waived. will this affect anything?

i read you can file for a fiance or spousal visa at a US consulate if you overstay for less than 180 days. according to this website : [url]http://www.immihelp.com/greencard/familybasedimmigration/persons-in-us.html[/url] . would this be easier? i'm just not sure if that's accurate. thank you so much for your reply.

[dmtils]

Originally Posted by boodle

what if i overstay for less than 6 months? let's say 3 months and i leave to go to manila with him and we marry there? because his contract for work there will be about a year or so. we just don't know the exact date he will be sent there but it is by first quarter of next year.

what are the consequences and options if it's less then 180 days? can he file a spousal visa while he's in manila and we're both living there? or does he have to be here in the US to file a spousal visa?

also, this would be my second time overstaying. i was here 15 years ago on a student visa and have overstayed for 4 years. i was underaged that time and left voluntarily when i turned 18. this was aug 1998. but i applied for a tourist visa last year, 8 years after i have gone back, and it got approved so i guess the bar from the previous issue have been waived. will this affect anything?

i read you can file for a fiance or spousal visa at a US consulate if you overstay for less than 180 days. according to this website : [url]http://www.immihelp.com/greencard/familybasedimmigration/persons-in-us.html[/url] . would this be easier? i'm just not sure if that's accurate. thank you so much for your reply.

You need to be VERY VERY careful, and pay VERY GOOD attention to what Lara told you. When you attempt to re-enter the U.S., you are COMPLETELY at the hands of the inspecting immigration officer.

[ImmigAttyLana]

You are not going to be able to enter the US as a visitor once you are legally married to a US citizen because you will be presumed to have immigrant intent. MOreover, if you are on a visa waiver and you overstay, you are no longer eligible to travel on that and have to obtain a visitor's visa which most likely will be denied if you are a spouse of a USC. If you are not permitted to enter the US as a visitor, you will have to wait abroad for about a year before your husband will be able to file a petition that would be approved and allow you to obtain an immigrant visa on the basis of that approved petition.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

[boodle]

thank you so much for the replies. i really appreciate all the advice. i'm just a little confused.

we don't mind waiting for one year for the spousal visa before going back here again since my bf will be assigned abroad anyway for a year or more to work. so we will be together abroad anyways while waiting. but we just want to make sure that i get to go back here with him after a year to visit, whether it's on a spousal or tourist visa, it doesn't matter. we just don't want to be apart and me getting banned for 3 years or more.

i guess i need clarification on, what is the difference (pros and cons) of overstaying for less than 180 days vs. overstaying for more than 180 days? does overstaying less than 180 days have more flexible terms than overstaying for more than 180 days?

thank you again for the replies.

[ImmigAttyLana]

Overstaying by more than 180 days means you will trigger an automatice 3 year bar to reentry upon departing the US.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

[boodle]

what are the ramifications if i just overstay for 3 months?

[ImmigAttyLana]

If you are on a visitor's visa or visa waiver you may cause it to be cancelled so I would not suggest overstaying at all, unless you do not plan on returning to the US on the same visa.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

[boodle]

thank you so much. you've been very helpful. that's right. it doesn't matter if my current tourist visa is cancelled because if we do do this, we'll be applying for a spousal visa instead for me to use to go back here.

after we get married in the philippines, can my bf file a spousal visa at the US embassy there while he's working there or does he need to file that while he is here in the US? can we both wait for it to get processed there so we can come back here together after a year?

[ImmigAttyLana]

It will take about 7-12 months for a spouse visa application to be processed before you can apply for the visa on that basis so depending on when you file the petition and when you plan to return, there is good chance you will not be able to return together. As for direct consular filing with the Consulate, you will need to find out whether he would be eligible to file there and that will depend on his status in the Philippines prior to filing.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

[boodle]

thank you so much. i really appreciate all your help and advice.