How to obtain a green card through out of the US marriage, if person previously overstayed?

Asked over 4 years ago - Washington, DC

My girlfriend was in the US with a F1 visa, expiring in 2012. Her program ended June 2009, she applied for OPT, the application was put on hold due to lack of fund in her account. She later sent the exact fee, the application was denied because the time frame between the end of her school program and the filing time was over the accepted 60 days. USCIS explained she could have filed a Motion to Reconsider that decision within 30 days from that letter. She decided not to file the motion and stay in the country until the end of Jan. 2010. More or less she overstayed for 120 days, but she was as well far along in her pregnancy. Now she is back in Italy. Which would be the obstacles if I file a Fiance visa for her or I decide to marry her in Italy and file an I-130?

Attorney answers (1)

  1. Scott D. Pollock

    Contributor Level 17

    Answered . If she was in violation of her F-1 status for no more than 120 days when she left the U.S., she will not be considered inadmissible based on a period of unlawful presence. It is possible that, because her F-1 status was for D/S. or duration of status, she may not have accrued any period of unlawful presence notwithstanding her status violation. I recommend consulting with an experienced and knowledgeable immigration attorney regarding processing her immigrant visa through the U.S. embassy or consulate in Italy, but these facts do not raise much concern at this time.

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