We were preparing to apply for a change of status but I just got a job offer in Japan. My wife is worried travel will be difficult to the US and other countries because of her overstay here. Should we continue with the change in status or can we go to Japan and just apply for a green card when we're there? She'll have overstayed for less than a month.
If her overstay was for less than 180 days ... there won't be a big problem.
To do a change of status has two problems:
1. The process takes 9-12 months
2. Once she gets the card, she shouldn't leave the US for more than 90 days at a time.
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Persons on the VWP are barred from changing their status in the U.S., and an overstay will negatively effect their ability to return to the US.
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(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.
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My colleague is correct that there will not be any legal consequences for an overstay of less than 180 days. It may however make it difficult for your wife to establish non-immigrant attempt if she were to later attempt to apply for a visa with that requirement. However since she is the spouse of a US citizen and will most likely re-enter as an immigrant (assuming your pursue consular processing) then this should not be an issue.
I believe that my colleague was going to point out that with the adjustment of status application (changing from a non-immigrant overstay to a permanent resident), once your wife receives her permanent residence status it is anticipated that she will actually reside in the US. However if you are planning on living and working in Japan, it does not make sense for her to pursue the adjustment of status at this time.
Good luck to you both.
A change of status request can only be file while the person is in status. If her status expired on 3/9, she can't file a change of status anymore.
To visit US again she would have to file a request for a B-2 visa. She won't be allowed back in under the VWP because of her overstay.
If you are a USC and want to apply for her green card, you might have another problem being out of the country. Generally, the sponsor has to be a US resident, with some exceptions. You should consult with an immigration attorney for a thorough evaluation of her case before filing anything.
[This answer is for general purposes only; it does not constitute advice and does not establish an attorney-client relationship.]
Employment / Labor Attorney
You guys need to consult with an attorney. If in fact she arrived on VWP (with no visa) she cannot change her status to anything. If she overstayed 90 days after arrival she can be removed from the US expeditiously and she does not have a right to see an Immigration judge in most cases. If she overstayed for more than 180 days, she will also be barred from coming the US for 3 years. Overstayed for 360 -- 10 years...
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A meeting with an attorney would be most advisable. There will be no bar to her reentering as an immigrant if she leaves within the time frame you suggest. She will have problems reentering as a nonimmigrant because she 1) previously overstayed and 2) is married to a US citizen. If you plan to live in japan, it may not make sense to apply for the green card immediately since there is the expectation that she will actually reside in the US. if she does not she can lose her residence status due to abandonment. Thus, a consultation with an attorney may be useful in helping you to plan how and when you file for your wife. Good luck.
Samuel Ouya Maina, Esq. 415.391.6612 email@example.com Law Offices of S. Ouya Maina, PC 332 Pine Street, Suite 707 San Francisco, CA 94104
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