my bf who entered usa with a tourist visa.. he overstayed.. i've been here in the usa for almost 3 yrs now.. i wanted to marry my boyfriend to help him change his status... but the thing is iam not yet a citizen..is marriage our best option at this point?
It will be advisable to wait for you to become a citizen. However you can always file the I-130 and then upgrade when you become a citizen.
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Best option: If you are eligible to naturalize, you should do so ASAP. The process can take anywhere from 6 months to year in most cases. Once you are a citizen, you need to petition for your husband and file the appropriate applications. Obviously if you intend to marry, you should do so now. You do not have to wait in order to marry. Your husband will not have to leave the United States in order to get LPR status since he entered legally; legal entrants can adjust status in the US.
Second option: You do not have to wait to naturalize to file for him, but if you file while you're a permanent resident, he will not qualify as an immediate relative and he will have to wait for visas to become available in his category before he can file for his adjustment. Depending on his country of origin, this could take many years. That's why you should naturalize if possible. If you are not eligible to naturalize, file the I-130 for your husband. When you naturalize, you can change his petition from a 2nd preference category to an immediate relative, assuming his visa hasn't become available by then.
There are a number of forms and fees to be paid as well as other variable to discuss. You should consult with an immigration lawyer.
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
When can you apply to become a US Citizen?
As a general rule, if a foreign national’s most recent entry into the U.S. was lawful, and they have overstayed or fallen out of status, and if their fiancé or spouse is a U.S. citizen, then it is likely that they can regain lawful status based on the American’s sponsorship.
There are several options that you must consider before making any decisions. I advise you to consult with an immigration attorney so that you do not do anything that you might regret later on from a legal perspective.
My office handles family based immigration cases, feel free to call for a free consultation.
If you do marry your bf, he will not qualify as an "immediate relative" for immigration purposes because you only have LPR status. Instead, he will fall into a preference category (2nd preference category). Preference categories for relatives of permanent residents have longer backlogs than preference categories for immediate relatives of U.S. citizens. This means that the petition will be subject to annual visa limits (quota) and available visas are issued to beneficiaries based on their priority dates. Wait time for the priority date to become current can be years. Additionally, your spouse may not adjust status here in the US bc of his overstay. If he does return to his home country, however, he will be subject to either a 3 or 10 year bar from returning to the US (exact length of time depends on how much time he's accrued).
You should speak to an experienced immigration attorney regarding the specific facts of your case, especially since the results of your case may change depending on when you qualify for citizenship.
This correspondence is intended as general information only and not as legal advice.
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