I'm a 29 year old female, and US born citizen; my boyfriend of 2 years is an illegal immigrant of West Africa. He entered the US legally under a tourist visa. His visa is now expired.
He would only be able to do so if he qualifies for 245(i), has a petitioner, and his priority date is current.
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There is no family-based visa category for a fiance or boyfriend of a U.S. Citizen who has overstayed his visitor's visa and is in the U.S. unlawfully. Upon marriage, however, a U.S. Citizen wife may petition for her husband to adjust status in the U.S. to become a Lawful Permanent Resident (to get a "Green Card"), notwithstanding that he has overstayed his visa.
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David N. Soloway
Frazier, Soloway & Poorak, P.C.
1800 Century Place, Suite 100
Atlanta, Georgia 30345 www.fspklaw.com
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[Note: Consistent with Avvo policy, this communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship.] David N. Soloway Frazier, Soloway & Poorak, P.C. 1800 Century Place, Suite 100 Atlanta, Georgia 30345 www.fspklaw.com 404-320-7000 * 1-877-232-5352 * email@example.com
The spouse of a US citizen is considere an immediate relative. There are no visa restrictions for an immediate relative, in other words, a visa is immediately available.
This post is not legal advice, and does not create a lawyer-client relationship.
No, since your fiance is in the U.S., you cannot apply for legal status for him unless you get married. Once you are married, you may apply for an Immigration Petition for your Husband to adjust his status and obtain permanent residence or a green card.
If you need more information on how to proceed, please contact our immigration law firm for a consultation.
Immigration Legal Team
Bogle & Chang, LLC
Phone: (800) 342-1733 ext. 101
Since he has overstayed his nonimmigrant tourist visa he would not be able to change status to another nonimmigrant status (There are a few exceptions to this such as for a victim of a crime or abuse). If he has overstayed by more than 6 months he is accruing unlawful presence and if he leaves the U.S. he will trigger either a 3 year or 10 year bar dependign on how long he has overstayed so he is in a risky situation. If he gets pulled over for driving without a license for example he is likely to be processed for removal from the U.S.
If marriage is in your immediate future and he can avoid being picked up, best strategy is to get married and then have you file for him while he is in the U.S. Since he has a legal original entry, he will be able to file for work permit and green card along with your peititon even though he is out of status and may have worked without authorization.
Lynne R. Feldman, Attorney at Law
Concentrating in Immigration and Nationality Law
2221 Camino Del Rio South, Suite 201
San Diego, CA 92108
phone: (619) 299-9600, facsimile: (619) 923-3277
Formerly Adjunct Professor -- Immigration law
University of Illinois College of Law