She needs to prove strong ties to her country sufficient to overcome the presumption that she will again overstay.
J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.
Immigration's records are maintained much better after 2001, so it is unclear whether her previous overstay will come up or not; however, no matter what, she will have to prove to the satisfaction of he officer that she will return to her home country and that she will not be overstaying.
Contact immigration attorney Gintare Grigaite at 646-407-2331. Answers on AVVO do not constitute legal advice and do not form attorney-client relationship. Always consult an attorney for a legal advice.
Depending upon when you plan on moving back to the US it is probably better to file the I-130. Since you are a US citizen they may reject the tourist visa unless the applicant/s can show strong ties they would return to their country. You should speak with and retain an immigration attorney to discuss exactly what you want to do and how best to accomplish it. My firm handles these types of cases.
212 537 4407
Legal disclaimer: The statement above is general in nature, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship.
I agree with Charles, proving the strong ties to your homeland are very important.
If you own property, full time employment (yours and your husband's), assets (bank account), can help you establish show your strong ties to your homeland. A return ticket and travel itinerary can also show the limited time of your visit. Before you make the appointment, make sure you have as much proof as possible to make the officer believe that you have no intent to stay in the US.
No, it is not better to apply for an I-130 until you are ready to return to the US permanently.