My 6 months in the US was up on October 28 (last Tuesday) but I was overstaying to marry my fiancé and file an adjustment I130 once marries. According to the legal advice I received, it was still ok to file after I've overstayed. We were planning on getting married in December.
As of today it looks like we may not marry in December due to financial trouble.
I'd like to know, how much are the penalty bans if I did leave the US by end of December, and how long can I overstay before I won't be able to file the I-130 if we don't get married for a few more months beyond December?
Once you are married to a US citizen, periods of unlawful presence do not affect your adjustment of status. However once you leave the country, the embassy may give you problems - even if you don't overstay by 6 months and trigger an inadmissibility ban. Also I often get people come into the office who marry and live together 2-3 years before they have the income they need to adjust status properly. Beware of doing anything until you get advice. The system isn't as logical or fair as you might think.
If you leave the U.S. you will not trigger the 3 year bar if you depart prior to accumulating 180 days of unlawful presence. However, the B-1/B-2 visa is no longer valid and you can not re- enter the U.S. with that visa.
I agree with my colleagues. If you overstay by more than 180 days, but less than one year, and you leave the United States, you will not be allowed to enter for 3 years. If you overstay more than one year and leave the United States, you will not be allowed to enter for 10 years. If you are married to a U.S. citizen, the time that you overstay your visa will not be counted against you when the relative petition and adjustment of status application are filed. It would be best to consult with an immigration attorney so that you and your future spouse can navigate through the process and to spot any possible issues.
Legal disclaimer: By answering this question, there is no intention to create, nor does it create an ongoing duty to respond to questions. An attorney-client relationship has not been formed. The answer is not intended as anything other than the opinion of the author. It should not be relied upon as legal advice. The answer given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.
I agree with the answers above. However the 3 or 10 year penalties are not triggered until someone actually departs the country. Make sure you see an experienced immigration attorney soon prior to making any decision regarding staying or leaving.
This is not intended to be legal advice; please consult with an attorney regarding case specifics. This is general information. This response does not create an attorney-client relationship.
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