A note that it's easy to "overstay" a visa when waiting for a green card interview - the wait times are often in the 6-16 month range, and if you leave the country you'll be considered to have abandoned your "petition to adjust status". It's a catch-22, and it looks like the only recourse is for an immigration lawyer to file a habeas corpus petition in federal court.
It's also worth pointing out that the nature of the green card interview is largely up to how the interviewer feels about you. It's a terrifyingly subjective experience.
There was an error in my wife's green card application that many people (including myself and our lawyer) should have caught. Our lawyer promised us that during the final interview this could be trivially corrected on the spot. Despite many smiles and laughs during the interview it's clear the interviewer didn't approve of how my current wife and I met (it involved a divorce) and so he decided that he couldn't possibly correct the error during the interview, and that while we passed, we would need to wait nearly a year for the correction.
While this was frustrating the interviewer could have just as easily decided, at his discretion, that our marriage was not "real" (despite the fact that the reason for his objection was ample evidence that it was quite real), so it was a pain we had to suffer. I've spent enough time working with petty bureaucrats to know it's better to accept whatever means they try to prove their own power than to fight it.
Errors happens on immigration forms all the time. Many of them aren't a big deal and can be corrected but there's a right and wrong way to do it. Fixable errors include things like failing to mention all your employers that you worked unauthorized or your name having a different spelling in certain cases. Since unauthorized work is forgiven if marrying a US citizen, the omission of employment is a correctable error.
The right way to fix this is to type out the questions you want to correct into a document (called an errata sheet) with the corrected answers and to hand that to the visa officer with your ID at the start of the interview. The reason you want to do this is you want a paper record that you volunteered this information. Anything verbal can be argued that you only revealed such information when confronted and that's a problem.
So I don't know what your issue was. Errors with a divorce could be as serious as you weren't free to marry because at the time you got married your divorce wasn't finalized and that invalidates your entire petition and there's no correcting that.
Another big one is USCIS not believing your divorce is real. this happens if you get divorced in certain countries (eg Ghana, Nigeria) where apparently fradulent divorce decrees are a real problem.
It had nothing whatsoever to do with the divorce itself, I'm a US citizen and was (legally) divorced for several years before the interview (and my marriage). The error was a typo that the interviewer was informed about well in advance of our interview, and could have been corrected by changing a value in a field which our lawyer informed us had been done many times in the past for other couples.
It's required to overstay, and for the case of student visas, you must abandon the visa when petitioning to adjust status. The terms of the student visa are that you cannot have immigration intentions.
When this happens, you're present without a visa, but it's not illegal. You're on a "stay authorized by the attorney general".
I'm not sure if that has changed, but the " authorized stay" thing is the defense to being present without a visa.
It does make a lot of paperwork more difficult, like getting a drivers license, when as you can't prove status.
If you get married as an F1 student, it's completely fine (and encouraged) to continue your studies under your F1 visa while your I130 and I485 are pending.
There are differences here if you're marrying a US citizen vs a green card holder. If you marry a green card holder, you must maintain your status until you adjust status with your I485. If you marry a US citizen, being out of status is forgiven.
If you discontinue your studies, USCIS (particularly under this administration) might try and argue you obtained your student visa fraudulently to deny your marriage petition. The best thing you can do is complete your studies and then, if applicable, obtain OPT to further maintain status.
Any marriage where the immigrant spouse is out of status will be treated with more scrutiny by USCIS.
> If you discontinue your studies, USCIS (particularly under this administration) might try and argue you obtained your student visa fraudulently to deny your marriage petition. The best thing you can do is complete your studies and then, if applicable, obtain OPT to further maintain status.
There are two things that I'm not sure about:
– Is the distinction between studying (regardless of status), vs. being in status vs. having a visa? Because the three are different: you can enter as a student and study, and have your F-1 expire, and still maintain status per SEVIS.
– IANAL, but you get an EAD upon petitioning for an AOS – does that prevent you from applying for OPT?
You can have two (or more) separate petitions with USCIS.
For example, if you get sponsored by an employer for a green card and you marry a US citizen, you might ask which green card should you pursue? The answer is both. This is fine and encouraged.
This also comes up with people who apply for asylum. This can take years to adjudicate. What if they get married to a US citizen in the meantime? Generally, the advice is to maintain your asylum application AND apply for your marriage-based green card.
This doesn't just apply to green cards either. If you work on an H1B, it's completely fine to apply for a green card (through employment and/or marriage) at the same time. Some will point out that the H1B is a so-called dual intent visa that doesn't preclude immigrant intent but that's not really what that means because you can adjust status to a green card on a non-immigrant intent visa too.
"Immigrant intent" here really means if a consulate will issue you the visa overseas and if CBP will let you into the country if you've shown immigrant intent (which usually means filing an I130 or similar). Once someone files an I130 for you, you'll not be granted a student or visitor's visa from outside the US and if you have either, you might be denied entry at the border. Because those aren't dual intent visas.
A red flag for USCIS for visa fraud is applying for an F1 visa, coming to the US, stopping studying and getting married. To them it looks like you committed immigration fraud just to come to the US.
That's why I say you should continue your studies (and also not get married in the first few months upon entering the US on a student visa).
So there's really no studying out of status per se. If you continue your studies, your F1 is still valid. When you get your EAD or green card, you can study with that and terminate your F1 status.
If you fall out of status on an F1 for a certain period of time it might be difficult or even impossible to resume student status to study at the same or another institution. I'm honestly not familiar with the rules around this.
But you're just not really going to be studying in the US without any status.
This happened to someone I know. He was working on a TN visa, had his green card approved, and was waiting for an interview. He was not allowed to leave the country, but he lost his job, and had to leave the country because of the 60 days grace period of the visa. Because he left, he lost his green card application.
You both:
1. Can't leave the country because of immigration laws.
2. Have to leave the country because of immigration laws.
Technically you're correct, but also wrong in how that applies in reality. A visa is a travel document and does not (directly) govern what options are available to a person once they're in the country. The requirement to apply for a visa and enter the country both require a showing of non-immigrant intent at that time as well as at all times within 90 days of entry in practice.
So there are three paths to getting a marriage-based green card:
1. You do what's called consular processing out of the country;
2. You adjust status in the country; and
3. A fiance visa (K1). I'm going to ignore this.
For (1), your US citizen or green card holder spouse will wil an I130 visa petition to show that you're legally married. USCIS will confirm that you are legally married (including both of you being free to marry) and then it gets sent to NVC (National Visa Center) and you get documentarily qualified. This whole thing can take 6-9 months. It can take substantially longer if there are certain risk factors as far as USCIS is concerned for fraud. Large age gap, certain countries of origins (particularly the Phillipines), etc.
Once you are documentarily qualified, the foreign spouse will apply for an interview at a foreign consulate. This used to be anywhere but as per a recent rule change by this administration, now has to be the country of origin, meaning if you're Canadian you have to do it in Canada not the UK or Italy or whatever.
This may not seem like a big deal but the wait in some countries can be years long, just for the interview.
While this is all pending, you likely will be unable to visit the US because you've shown immigreant intent so you'll be denied ESTA or a visitor's visa most likely. Or, if you have a visitor's visa, you may be denied entry at the border.
For a standard case, this whole thing will take about 2 years. There are a whole bunch of steps like biometrics, police checks, etc and there are cases where you may need waivers of inadmissibility (eg if you have a 3 year bar or have a felony conviction). Those waivers can add years.
For (2), the process differs if you're marrying a green card holder or a US citizen.
If you have a marry a green card holder, they file an I130 petition and you'll get a priority date. There is a quota for these green cards. When your priority date becomes current, you the file an I485 for your spouse. Your immigrant spouse must've remained in status for this entire time up to and including when the I485 is approved. Because of the quota, this can take years and people will often become US citizens before the process is complete.
There is no quota for immediate relatives of US citizens (including spouses, parents and children under 18). If you marry a US citizen, you generally file the I130 and I485 concurrently. You can optionally also apply for advance parole, which will allow you to travel (more on that below), and an EAD, which will allow you to work until you get your green card. At this time people often get their green cards before their EADs so many don't even apply for them currently.
So, traveling. If you have a pending I485 and you leave the US you have in the eyes of USCIS abandoned that I485. You are now out of the country and most likely will be barred from re-entering the US, forcing you to consular process. You might be able to return if you have an immigrant intent visa like an H1B but it's generally recommended not to travel at all while you have a pending I485 application if you can possibly avoid it.
If you marry a US citizen, being out of status and working without authorization are both forgiven. This isn't the case for a marriage to a green card holder I believe. But if you marry a green card holder and while your application is pending they become a US citizen (as often happens), then the US citizen rules apply anyway.
So, if you are on a TN visa and have a pending I130 and I485, you have two choices:
1. You can leave the country and go back to Canada. This will abandon your I485 (but not the I130) and will force you to consular process. You'll be gone for 1-2 years most likely and likely unable to visit. This is the safest option however but obviously most people don't want to be separate from their spouse for so long, understanbly; or
2. You accept that you will be out of status and you stay. Any overstay of less than 6 months generally isn't an issue although working unauthorized is if, for some reason, your marriage petition is withdrawn or denied. If you overstay 6-12 months, you have an automatic 3 year bar on returning should you leave. If you overstay more than 1 year, it's a 10 year bar.
In the current administration, I think there are zero marriage petitions that should be done yourself. You should have a lawyer. Any decent lawyer who will be able to lay out the options as I've described.
Assuming your case is fairly straightforward and you've already filed the I130 and I485, I'd generally suggest people just accept the overstay and adjust in the US although I can certainly understand the "cleaner" (but longer) approach of choosing consular processing instead, particularly if you are still in status and don't have any automatic bar due to a 6+ month overstay.
You're phrasing this a bit oddly. There isn't any immigration law saying he cannot leave the country.
There is a law saying that if you leave the country you abandon your green card application.
Combined with losing his visa and having to leave the country, this just means that the law says if you lose your visa, you lose your green card application too.
But you can always legally leave the country forever.
I remember reading that depending on which country you’re from, the waiting time can be years or even decades. Is that true? If so that’s crazy and cruel.
Country of birth does determine the "priority date" waiting list. Specifically for Philippines, Mexico, India and China. Due to demand. Everyone else is in the rest of the world bucket.
For those countries (especially India) the wait can be more than a decade.
Moving to a points based immigration system without country of birth consideration may one day happen.
Depending on what contributes to points it would encourage better English language abilities and skill sets from immigrants (eg winners being China and India, losers being Mexico)
In many circumstances - including when that person is married to a US citizen, or when they'll likely be killed on return to their country of birth - it is indeed crazy and cruel.
(In more ordinary circumstances it's merely arbitrary and unjust.)
Depends on the visa category. Family preference visas for siblings can have waiting lists in the decades. But family preference visas for spouses of citizens have no wait list. It's just the system is slow. We went through some of it long ago, her time here threw us into proximity, proximity turned to love. That meant an adjustment of status, her old visa became invalid when we applied, but you have permission to stay while such an application is being processed. A hair under 6 months from application to first interview, a hair under two years before she got conditional permanent residency. (And I think that timing was not a coincidence, they stretched it out to just below the point it wouldn't have been conditional.) I would be terrified to do that under the current administration.
This really depends on your relationship with the other person and your status (e.g. US citizen, permanent resident, etc). Long story short, if you are the spouse or immediate family of an US citizen, there isn't any queue to get permanent resident status aside from whatever time it takes the US government to process the various forms. That time can be substantial, e.g. 2-3 years but it's nothing like the multi-year wait that a spouse of a permanent resident needs to go through just to apply for permanent resident status.
I am surprised people are willing to put up with this sort inhumane treatment. A person I know has been waiting for 16+ years for his green card. They've very rarely traveled out of the USA together as a family because they were afraid they might be a problem getting back in. The people I know are not even desperate migrants where this sort of treatment is still better than the lives they are living - yet they still normalise it. When I ask them why they tolerate such draconian conditions, I get answers such as "well, we didn't realise it would take this long" or "this doesn't happen to people like us".
Supply and demand. The US is by far the top place people want to be, so however poorly they treat applicants, there will still be an infinite supply of people willing to put up with it.
I get that, but the kind of white collar workers who are putting up with this have options all over the world. Why would even such people put up with it?
Depends on the work? Software salaries in the US are so far beyond anywhere else in the world that it puts you in a significantly different lifestyle.
One year of a kafkaesque process to make $500k/year instead of 70k Euros is a trade worth it to tons of people to make the go at it. And that’s for stable corporate jobs, it gets even more favorable if you want to start a company.
As an American with a foreign-spouse who went through the green card application long before Trump, these stories are heart-breaking but also what I expected. I guess these couples and lawyers were just counting on lax enforcement? But this was never allowed.
The article is very light on details, but implies all of these spouses travelled to the US on a visa waiver (or similar) and then applied for a green card. Entering the US on most visas includes the assertion that you have no intent to immigrate. If you happen to already be in the US when you fall in love, get married, and apply to stay, that's when you're allowed to overstay during your pending application.
As far as I can tell from the article, it appears all of these people committed immigration fraud by entering on non-immigrant visas with clear intent to immigrate. Given that they're almost certainly upstanding people who intended to do the right thing, I think they could safely be asked to leave and apply correctly without the forceful detention, but they are technically in the wrong. What they did is specifically something I knew not to do and went through great pains to avoid.
The immigration processes for legitimate foreign spouses are Kafkaesque and absolutely need to be overhauled. It shouldn't be easier to come in illegally than through legitimate marriage. But in the meantime, people also can't circumvent the existing laws and then act flabbergasted when called on it.
I really do feel terrible for these couples caught up in it, especially since it seems their lawyers misled them.
Yes, exactly. Your legal options are to either remain separated for one or two years while you wait, or the American can immigrate to the spouse’s country and wait there (since almost every other country is easier to immigrate to).
It's an inhumane system, but as someone heavily impacted by US immigration policy, I'd much prefer they enforce the laws evenly and then fix them where they're broken rather than disadvantaging everyone going through the legal process while those that cheat get to jump ahead.
Yeah, we married in California but then left when my wife finished her Ph.D. and used up her optional practical training period on her student visa. After about four years of being an expat, I realized it wasn't for me and we started planning a return.
So, we filed the spousal petition with USCIS overseas. It was a lot of paperwork, interviews for her, and some process delays. Eventually she got her immigrant visa issued. Upon arrival in the US on that visa, it was endorsed to reflect immigration status.
This was about fifteen years ago, and as I recall the process delays were pretty much as advertised at the time. We were able to time our filing so that the visa was issued around when she would be ready to relocate.
Most of the time we spent apart was due to our conflicting career opportunities and obligations. I think the petition could have been pipelined better if I'd been willing to stick with my expat job until she also wrapped up her work there.
> I'd much prefer they enforce the laws evenly and then fix them where they're broken rather than disadvantaging everyone going through the legal process while those that cheat get to jump ahead.
That is incredibly optimistic to believe that any legislation reforming immigration will be passed in the next decade.
There is a reason ICE was neutralized until now. Life is short. We don't have time for congress to play politics while Americans and their spouses suffer. Let people live their lives.
Maybe I'm too stiff, but even if they don't get around to updating the laws, I'd still prefer they enforce the ones that exist so it's clear, fair, and safe. And so upstanding citizens aren't spending years separated from their spouses while they keep getting skipped by people willing to cheat the system.
It's not even a law that results in the years-long wait; it's just because the system is clogged up with other junk and understaffed. As other's have mentioned; there's no formal waiting for citizen spouses—it's supposed to be immediate—it's just that they don't even get to look at your application for years.
> I can see why people were tempted to cut corners, especially given past tolerance…
Which is one of the reasons that the pre-trump executive orders that granted leniency and amnesty at times were all terrible terrible things to do. We really have a problem in this country where we've decided that the laws suck, but we don't want to do the hard part of changing the law, so we just decide to ignore it. Until at some point someone comes along and decides to enforce the law and now a whole bunch of people who were acting on the de facto state of the law now have to deal with the consequences of the de jure state of the law.
Immigration is a place we've done this a lot, but things like the status of marijuana across the country is also predicated on this sort of arbitrary non-enforcement of the law. Obviously the states are not obligated to enforce federal law, but the feds absolutely can. The feds could raid every marijuana dispensary in the country and take them all down with barely a hiccup, at least from a legality standpoint. Yet they don't because we have decided to arbitrarily not enforce the law, even if we haven't changed the law.
I had really hoped after Trump's first term, we would have seen a real awakening to the amount of things that are allowed only because we don't actually enforce the laws that are on the books, and a real push to both fix the laws and roll back the abuses of executive power like this. But we didn't seem to learn that lesson, and sadly it doesn't look like that lesson is going to be learned this time either.
Congrats, Trump voters, you’re getting exactly what you specifically voted for. Revel in it. Hardened criminals, here, while ICE refuses to go after anyone vaguely dangerous.
So this is a topic I follow and I could speak at length to all the anti-immigrant actions taken by this administration. It's every aspect of the immigration process. This isn't only a stricter enforcement policy or a stricter interpretation of certain rules but things that are arguably illegal.
For example, one of the requirements for naturalization is "good moral chracter". Well, what does that mean? Up until this year, that's simply been the absence of any disqualifying criteria, such as unpaid taxes, unpaid child support, most felony convictions, etc. This administration has reinterpreted "good moral chracter" to be affirmative, something you need to provide proof of, rather than the absence of anything negative. This is arguably illegal.
Anyway, back to this article, one example here is from San Diego. This article doesn't mention it but there was a leaked memo where USCIS and ICE are trialling a new process in the San Diego field office of having the interviewing visa officer call in ICE to detain applicants in cases they never did before.
For context, overstaying a visa isn't a crime (unless you get deported then do it again, basically). It's a civil infraction. There are lots of immigration benefits you can't get if you're out of status however but marriage to a US citizen is an exception. Visa overstays and unauthorized work are generally forgiven in those cases, by law. So such people were never detained because their overstays were forgiven so what's the point?
There are also people who did not enter through a regular port of entry. Legally, this is called "entering without inspection". This includes people who sneak across the border. It also includes a bunch of people who were infants or children at the time so never made a choice. This was the basis for the DACA ("Deferred Action for Childhood Arrivals") program under Obama. There are people who are now adults who have lived here since they were a few months old who have never known anywhere else. Deporting them to a country they've never known is cruel and unusual.
So another thing this administration has done has created a policy whereby all those who entered without inspection can be detained and should be denied bond.
Here's a partial list of other sins of the administration just off the top of my head:
1. Most visibly, the ICEstapo raids;
2. Skin color can now be used as a factor for an immigration stop thanks to an "emergency" ruling by this Supreme Court, granting a petition by the government. Location can be another factor so it's now completely legal to do an immigration stop on someone who looks Hispanic in the vicinity of a Home Depot, for example.
3. Ended TPS ("Temporary Protected Status") for a bunch of countries, putting refugees and asylum seekers out of status;
3. Immigration judges, unlike Federal judges, are not ARticle 3 judges (by the Constitution). ARticle 3 judges are nominated by the president and confirmed by the Senate and cannot be fired. They have to be impeached. Immigration judges are simply employees of the executive branch. This administration has started firing immigreation judges if they approve too many cases;
4. People such as Kilmer Abrego Garcia were deported to El Salvador, a country he feared returning to, in defiance of a Federal court order blocking his deportation to El Salvador. When taken there he was put in a maximum security prison (ie CECOT);
5. The government then for the longest time refused to fix their error, including openly defying Federal judges;
6. Revoking the lawful permanent residence status of Mahmoud Khalil for hurting Israel's feelings by saying factually accurate things about Israel's war crimes and organizing peaceful protests at Columbia;
7. Black bagging detainees and moving them interstate before their families know so a local judge can't block their detention and order them released. In fact, they take them to the jurisdictions of friendly judges in places like Louisiana. This is the ultimate in judge shopping;
8. For visa applicants outside the US, this administration has begun forcing people to go to the consulate in their home country rather than the country they live in. This puts in limbo people who come from countries with which the US currently has no consulate. This is an intentional delay tactic as a person may study or work in the UK but be a citizen of Ghana or Nigeria where there is a 2-4 year wait for a visa interview. This is intentional.
9. Arbitrarily decided that humanitarian parolees under Biden were "illegally" paroled into the US and are now seeking to detain and deport these people;
10. Deporting people to so-called third countries ie not to that person's country of origin or even a country they might otherwise choose under voluntary departure;
I'm sure there's more. It's a shame only the ICEstapo raids really get any media attention.
While I personally find no objection to these spouses remaining here, I don't see what is really supposed to concern me from a legal perspective. There is no right to residency of migration in general. I do agree we ought to change the law to be make it easier for spouses of citizens, but if you overstay a visa you should expect detention.
However from a moral standpoint I find the infant child separation abhorrent and think that we should generally defer to American citizen spouses as a pretty good indicator that we should show some mercy in enforcement. Moreover, the law should be changed that foreign spouses without criminal records and not taking public benefit ought to be allowed to stay and work honestly. Make it easy.
I think this was explained before. But basically the processing takes so long (over a year) that you are guaranteed to overstay most visas and leaving the US is considered as abandoning your petition for a green card.
So you are in this limbo state where you are given some kind of status while the application is pending and you absolutely can’t leave the country.
But that’s not the issue here nor why people are being detained.
People came to the US with intend to marry and apply for a green card on non immigrant visa. For instance British citizens on a visa waiver can just show up and get married. That’s legal.
But it turns into immigration fraud if you always intended to apply for a green card afterwards.
What you are supposed to do is apply for a K1 fiancé visa which takes another year.
>but if you overstay a visa you should expect detention.
I really dont get this view.
Like you could substitute detention with a 1 dollar a day fine, or community service. Why does the punishment for this particular crime, have to be detention. Why is it worse than making your local council mad for not taking out the bins. The severity of the punishment is just ludicrous compared to the crime of participating in a community, and the US isnt the only place with this brainrot.
The community isn't harmed by an overstay as it is with say, shooting people or stabbing people. In fact it seems widely recognised that these people contribute in the net positive.
It also seems like there's an overwhelming consensus that its easier to sort out immigration issues from inside the target country, outside of detention with access to legal representation.
The article strongly misrepresents this, and they were almost certainly not detained for over-staying, but likely for fraudulent entry. See my other comment.
A capricious, arbitrary, hard to satisfy legal system that's filled with catch-22s doesn't concern you?
Is it because only immigrants and their families are subjected to an unfair legal system, so it doesn't seem to be your concern? In a democracy, the actions of a government are collective. We all bear responsibility for injustice and a corresponding responsibility to pursue a more just system.
My understanding is that the validity of the visa has nothing to do with whether you are "in status". The visa is for entry and authorized status allows you to stay in the US. You could be authorized to stay in the US and yet have to petition to get a re entry permit should you choose to leave the US temporarily.
Now I wrote this and even I am not sure if what I wrote is fully correct. I know it is correct for at least one scenario but I anal and I am sure there are scenarios where what I said is not just false but dangerously bad advice.
I remember talking to a britisher about the US border situation on a forum that also included yanks. He had asked for advice, and I relayed a bunch that was evergreen, but was passed around during the first trump admin.
The yanks all got confused, like I was making up a problem. And would not stop pretending like there are no border issues even after I presented multiple instances as evidence. Like if you can drive your car to the store and back there must also not be issues at the airport.
I feel like US media must isolate people severely. Whereas, countries that do business with the US, are kept keenly aware of the dangers.
A note that it's easy to "overstay" a visa when waiting for a green card interview - the wait times are often in the 6-16 month range, and if you leave the country you'll be considered to have abandoned your "petition to adjust status". It's a catch-22, and it looks like the only recourse is for an immigration lawyer to file a habeas corpus petition in federal court.
It's also worth pointing out that the nature of the green card interview is largely up to how the interviewer feels about you. It's a terrifyingly subjective experience.
There was an error in my wife's green card application that many people (including myself and our lawyer) should have caught. Our lawyer promised us that during the final interview this could be trivially corrected on the spot. Despite many smiles and laughs during the interview it's clear the interviewer didn't approve of how my current wife and I met (it involved a divorce) and so he decided that he couldn't possibly correct the error during the interview, and that while we passed, we would need to wait nearly a year for the correction.
While this was frustrating the interviewer could have just as easily decided, at his discretion, that our marriage was not "real" (despite the fact that the reason for his objection was ample evidence that it was quite real), so it was a pain we had to suffer. I've spent enough time working with petty bureaucrats to know it's better to accept whatever means they try to prove their own power than to fight it.
Errors happens on immigration forms all the time. Many of them aren't a big deal and can be corrected but there's a right and wrong way to do it. Fixable errors include things like failing to mention all your employers that you worked unauthorized or your name having a different spelling in certain cases. Since unauthorized work is forgiven if marrying a US citizen, the omission of employment is a correctable error.
The right way to fix this is to type out the questions you want to correct into a document (called an errata sheet) with the corrected answers and to hand that to the visa officer with your ID at the start of the interview. The reason you want to do this is you want a paper record that you volunteered this information. Anything verbal can be argued that you only revealed such information when confronted and that's a problem.
So I don't know what your issue was. Errors with a divorce could be as serious as you weren't free to marry because at the time you got married your divorce wasn't finalized and that invalidates your entire petition and there's no correcting that.
Another big one is USCIS not believing your divorce is real. this happens if you get divorced in certain countries (eg Ghana, Nigeria) where apparently fradulent divorce decrees are a real problem.
It had nothing whatsoever to do with the divorce itself, I'm a US citizen and was (legally) divorced for several years before the interview (and my marriage). The error was a typo that the interviewer was informed about well in advance of our interview, and could have been corrected by changing a value in a field which our lawyer informed us had been done many times in the past for other couples.
It's required to overstay, and for the case of student visas, you must abandon the visa when petitioning to adjust status. The terms of the student visa are that you cannot have immigration intentions.
When this happens, you're present without a visa, but it's not illegal. You're on a "stay authorized by the attorney general".
I'm not sure if that has changed, but the " authorized stay" thing is the defense to being present without a visa.
It does make a lot of paperwork more difficult, like getting a drivers license, when as you can't prove status.
This is false.
If you get married as an F1 student, it's completely fine (and encouraged) to continue your studies under your F1 visa while your I130 and I485 are pending.
There are differences here if you're marrying a US citizen vs a green card holder. If you marry a green card holder, you must maintain your status until you adjust status with your I485. If you marry a US citizen, being out of status is forgiven.
If you discontinue your studies, USCIS (particularly under this administration) might try and argue you obtained your student visa fraudulently to deny your marriage petition. The best thing you can do is complete your studies and then, if applicable, obtain OPT to further maintain status.
Any marriage where the immigrant spouse is out of status will be treated with more scrutiny by USCIS.
> If you discontinue your studies, USCIS (particularly under this administration) might try and argue you obtained your student visa fraudulently to deny your marriage petition. The best thing you can do is complete your studies and then, if applicable, obtain OPT to further maintain status.
There are two things that I'm not sure about:
– Is the distinction between studying (regardless of status), vs. being in status vs. having a visa? Because the three are different: you can enter as a student and study, and have your F-1 expire, and still maintain status per SEVIS.
– IANAL, but you get an EAD upon petitioning for an AOS – does that prevent you from applying for OPT?
You can have two (or more) separate petitions with USCIS.
For example, if you get sponsored by an employer for a green card and you marry a US citizen, you might ask which green card should you pursue? The answer is both. This is fine and encouraged.
This also comes up with people who apply for asylum. This can take years to adjudicate. What if they get married to a US citizen in the meantime? Generally, the advice is to maintain your asylum application AND apply for your marriage-based green card.
This doesn't just apply to green cards either. If you work on an H1B, it's completely fine to apply for a green card (through employment and/or marriage) at the same time. Some will point out that the H1B is a so-called dual intent visa that doesn't preclude immigrant intent but that's not really what that means because you can adjust status to a green card on a non-immigrant intent visa too.
"Immigrant intent" here really means if a consulate will issue you the visa overseas and if CBP will let you into the country if you've shown immigrant intent (which usually means filing an I130 or similar). Once someone files an I130 for you, you'll not be granted a student or visitor's visa from outside the US and if you have either, you might be denied entry at the border. Because those aren't dual intent visas.
A red flag for USCIS for visa fraud is applying for an F1 visa, coming to the US, stopping studying and getting married. To them it looks like you committed immigration fraud just to come to the US.
That's why I say you should continue your studies (and also not get married in the first few months upon entering the US on a student visa).
So there's really no studying out of status per se. If you continue your studies, your F1 is still valid. When you get your EAD or green card, you can study with that and terminate your F1 status.
If you fall out of status on an F1 for a certain period of time it might be difficult or even impossible to resume student status to study at the same or another institution. I'm honestly not familiar with the rules around this.
But you're just not really going to be studying in the US without any status.
I see what you mean now – thanks for clarifying for me.
This happened to someone I know. He was working on a TN visa, had his green card approved, and was waiting for an interview. He was not allowed to leave the country, but he lost his job, and had to leave the country because of the 60 days grace period of the visa. Because he left, he lost his green card application.
You both:
1. Can't leave the country because of immigration laws.
2. Have to leave the country because of immigration laws.
A TN visa is explicitly a "non-immigrant visa", there isn't supposed to be a pathway to permanent residency.
It's still possible to through an adjustment of status but the hoops around not leaving the country are much more awkward.
Because permanent immigration is not the intent of a TN visa, it's a loophole.
Technically you're correct, but also wrong in how that applies in reality. A visa is a travel document and does not (directly) govern what options are available to a person once they're in the country. The requirement to apply for a visa and enter the country both require a showing of non-immigrant intent at that time as well as at all times within 90 days of entry in practice.
So there are three paths to getting a marriage-based green card:
1. You do what's called consular processing out of the country;
2. You adjust status in the country; and
3. A fiance visa (K1). I'm going to ignore this.
For (1), your US citizen or green card holder spouse will wil an I130 visa petition to show that you're legally married. USCIS will confirm that you are legally married (including both of you being free to marry) and then it gets sent to NVC (National Visa Center) and you get documentarily qualified. This whole thing can take 6-9 months. It can take substantially longer if there are certain risk factors as far as USCIS is concerned for fraud. Large age gap, certain countries of origins (particularly the Phillipines), etc.
Once you are documentarily qualified, the foreign spouse will apply for an interview at a foreign consulate. This used to be anywhere but as per a recent rule change by this administration, now has to be the country of origin, meaning if you're Canadian you have to do it in Canada not the UK or Italy or whatever.
This may not seem like a big deal but the wait in some countries can be years long, just for the interview.
While this is all pending, you likely will be unable to visit the US because you've shown immigreant intent so you'll be denied ESTA or a visitor's visa most likely. Or, if you have a visitor's visa, you may be denied entry at the border.
For a standard case, this whole thing will take about 2 years. There are a whole bunch of steps like biometrics, police checks, etc and there are cases where you may need waivers of inadmissibility (eg if you have a 3 year bar or have a felony conviction). Those waivers can add years.
For (2), the process differs if you're marrying a green card holder or a US citizen.
If you have a marry a green card holder, they file an I130 petition and you'll get a priority date. There is a quota for these green cards. When your priority date becomes current, you the file an I485 for your spouse. Your immigrant spouse must've remained in status for this entire time up to and including when the I485 is approved. Because of the quota, this can take years and people will often become US citizens before the process is complete.
There is no quota for immediate relatives of US citizens (including spouses, parents and children under 18). If you marry a US citizen, you generally file the I130 and I485 concurrently. You can optionally also apply for advance parole, which will allow you to travel (more on that below), and an EAD, which will allow you to work until you get your green card. At this time people often get their green cards before their EADs so many don't even apply for them currently.
So, traveling. If you have a pending I485 and you leave the US you have in the eyes of USCIS abandoned that I485. You are now out of the country and most likely will be barred from re-entering the US, forcing you to consular process. You might be able to return if you have an immigrant intent visa like an H1B but it's generally recommended not to travel at all while you have a pending I485 application if you can possibly avoid it.
If you marry a US citizen, being out of status and working without authorization are both forgiven. This isn't the case for a marriage to a green card holder I believe. But if you marry a green card holder and while your application is pending they become a US citizen (as often happens), then the US citizen rules apply anyway.
So, if you are on a TN visa and have a pending I130 and I485, you have two choices:
1. You can leave the country and go back to Canada. This will abandon your I485 (but not the I130) and will force you to consular process. You'll be gone for 1-2 years most likely and likely unable to visit. This is the safest option however but obviously most people don't want to be separate from their spouse for so long, understanbly; or
2. You accept that you will be out of status and you stay. Any overstay of less than 6 months generally isn't an issue although working unauthorized is if, for some reason, your marriage petition is withdrawn or denied. If you overstay 6-12 months, you have an automatic 3 year bar on returning should you leave. If you overstay more than 1 year, it's a 10 year bar.
In the current administration, I think there are zero marriage petitions that should be done yourself. You should have a lawyer. Any decent lawyer who will be able to lay out the options as I've described.
Assuming your case is fairly straightforward and you've already filed the I130 and I485, I'd generally suggest people just accept the overstay and adjust in the US although I can certainly understand the "cleaner" (but longer) approach of choosing consular processing instead, particularly if you are still in status and don't have any automatic bar due to a 6+ month overstay.
You absolutely can leave the country. You just aren't entitled to permanent residency as a result.
I knew if this thread stayed around long enough, the ghouls would eventually show up.
Why is that ghoulish? I disagree with the policy, but it's fundamentally different to force someone to leave and to force them to stay.
People are being forced to leave.
You're phrasing this a bit oddly. There isn't any immigration law saying he cannot leave the country.
There is a law saying that if you leave the country you abandon your green card application.
Combined with losing his visa and having to leave the country, this just means that the law says if you lose your visa, you lose your green card application too.
But you can always legally leave the country forever.
> It's a catch-22
What do immigration attorneys recommend in this scenario?
I don’t get the catch-22, time’s up & you leave
Happens to H1Bs all the time
The "overstay" was scare quotes – you're allowed to stay.
Your immigration attorney will advise that you overstay. If you do not, your application will be abandoned.
I remember reading that depending on which country you’re from, the waiting time can be years or even decades. Is that true? If so that’s crazy and cruel.
Country of birth does determine the "priority date" waiting list. Specifically for Philippines, Mexico, India and China. Due to demand. Everyone else is in the rest of the world bucket.
For those countries (especially India) the wait can be more than a decade.
Moving to a points based immigration system without country of birth consideration may one day happen.
Depending on what contributes to points it would encourage better English language abilities and skill sets from immigrants (eg winners being China and India, losers being Mexico)
> Moving to a points based immigration system without country of birth consideration may one day happen.
Anything, honestly, to end the need for informal lawyering that even immigrants with straightforward situations still have to do.
Only if you think it is crazy and cruel to disallow someone from another country to become a legal resident and then eventually a citizen of the US.
In many circumstances - including when that person is married to a US citizen, or when they'll likely be killed on return to their country of birth - it is indeed crazy and cruel.
(In more ordinary circumstances it's merely arbitrary and unjust.)
Depends on the visa category. Family preference visas for siblings can have waiting lists in the decades. But family preference visas for spouses of citizens have no wait list. It's just the system is slow. We went through some of it long ago, her time here threw us into proximity, proximity turned to love. That meant an adjustment of status, her old visa became invalid when we applied, but you have permission to stay while such an application is being processed. A hair under 6 months from application to first interview, a hair under two years before she got conditional permanent residency. (And I think that timing was not a coincidence, they stretched it out to just below the point it wouldn't have been conditional.) I would be terrified to do that under the current administration.
This really depends on your relationship with the other person and your status (e.g. US citizen, permanent resident, etc). Long story short, if you are the spouse or immediate family of an US citizen, there isn't any queue to get permanent resident status aside from whatever time it takes the US government to process the various forms. That time can be substantial, e.g. 2-3 years but it's nothing like the multi-year wait that a spouse of a permanent resident needs to go through just to apply for permanent resident status.
As ever, the craziness and the cruelty is the point.
I am surprised people are willing to put up with this sort inhumane treatment. A person I know has been waiting for 16+ years for his green card. They've very rarely traveled out of the USA together as a family because they were afraid they might be a problem getting back in. The people I know are not even desperate migrants where this sort of treatment is still better than the lives they are living - yet they still normalise it. When I ask them why they tolerate such draconian conditions, I get answers such as "well, we didn't realise it would take this long" or "this doesn't happen to people like us".
Supply and demand. The US is by far the top place people want to be, so however poorly they treat applicants, there will still be an infinite supply of people willing to put up with it.
I get that, but the kind of white collar workers who are putting up with this have options all over the world. Why would even such people put up with it?
Professional opportunity or quality of life, most likely. Nowhere else even comes close to the US in terms of professional and economic opportunity.
Depends on the work? Software salaries in the US are so far beyond anywhere else in the world that it puts you in a significantly different lifestyle.
One year of a kafkaesque process to make $500k/year instead of 70k Euros is a trade worth it to tons of people to make the go at it. And that’s for stable corporate jobs, it gets even more favorable if you want to start a company.
Truly brave feat of public service getting those criminals off the street.
Friendly reminder that it's often not possible to differentiate snark or sarcasm from cruel indifference towards fellow human beings on Hacker News.
I don’t know that this reply was warranted, it’s clearly sarcasm.
Obviously sarcasm
Sometimes yes, but I think in this case the angry sarcasm is clear.
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https://archive.is/Ealef
As an American with a foreign-spouse who went through the green card application long before Trump, these stories are heart-breaking but also what I expected. I guess these couples and lawyers were just counting on lax enforcement? But this was never allowed.
The article is very light on details, but implies all of these spouses travelled to the US on a visa waiver (or similar) and then applied for a green card. Entering the US on most visas includes the assertion that you have no intent to immigrate. If you happen to already be in the US when you fall in love, get married, and apply to stay, that's when you're allowed to overstay during your pending application.
As far as I can tell from the article, it appears all of these people committed immigration fraud by entering on non-immigrant visas with clear intent to immigrate. Given that they're almost certainly upstanding people who intended to do the right thing, I think they could safely be asked to leave and apply correctly without the forceful detention, but they are technically in the wrong. What they did is specifically something I knew not to do and went through great pains to avoid.
The immigration processes for legitimate foreign spouses are Kafkaesque and absolutely need to be overhauled. It shouldn't be easier to come in illegally than through legitimate marriage. But in the meantime, people also can't circumvent the existing laws and then act flabbergasted when called on it.
I really do feel terrible for these couples caught up in it, especially since it seems their lawyers misled them.
So the right process is to request for a K1 fiancé visa which takes over a year?!
I can see why people were tempted to cut corners, especially given past tolerance…
Yes, exactly. Your legal options are to either remain separated for one or two years while you wait, or the American can immigrate to the spouse’s country and wait there (since almost every other country is easier to immigrate to).
It's an inhumane system, but as someone heavily impacted by US immigration policy, I'd much prefer they enforce the laws evenly and then fix them where they're broken rather than disadvantaging everyone going through the legal process while those that cheat get to jump ahead.
Yeah, we married in California but then left when my wife finished her Ph.D. and used up her optional practical training period on her student visa. After about four years of being an expat, I realized it wasn't for me and we started planning a return.
So, we filed the spousal petition with USCIS overseas. It was a lot of paperwork, interviews for her, and some process delays. Eventually she got her immigrant visa issued. Upon arrival in the US on that visa, it was endorsed to reflect immigration status.
This was about fifteen years ago, and as I recall the process delays were pretty much as advertised at the time. We were able to time our filing so that the visa was issued around when she would be ready to relocate.
Most of the time we spent apart was due to our conflicting career opportunities and obligations. I think the petition could have been pipelined better if I'd been willing to stick with my expat job until she also wrapped up her work there.
> I'd much prefer they enforce the laws evenly and then fix them where they're broken rather than disadvantaging everyone going through the legal process while those that cheat get to jump ahead.
That is incredibly optimistic to believe that any legislation reforming immigration will be passed in the next decade.
There is a reason ICE was neutralized until now. Life is short. We don't have time for congress to play politics while Americans and their spouses suffer. Let people live their lives.
Maybe I'm too stiff, but even if they don't get around to updating the laws, I'd still prefer they enforce the ones that exist so it's clear, fair, and safe. And so upstanding citizens aren't spending years separated from their spouses while they keep getting skipped by people willing to cheat the system.
It's not even a law that results in the years-long wait; it's just because the system is clogged up with other junk and understaffed. As other's have mentioned; there's no formal waiting for citizen spouses—it's supposed to be immediate—it's just that they don't even get to look at your application for years.
> I can see why people were tempted to cut corners, especially given past tolerance…
Which is one of the reasons that the pre-trump executive orders that granted leniency and amnesty at times were all terrible terrible things to do. We really have a problem in this country where we've decided that the laws suck, but we don't want to do the hard part of changing the law, so we just decide to ignore it. Until at some point someone comes along and decides to enforce the law and now a whole bunch of people who were acting on the de facto state of the law now have to deal with the consequences of the de jure state of the law.
Immigration is a place we've done this a lot, but things like the status of marijuana across the country is also predicated on this sort of arbitrary non-enforcement of the law. Obviously the states are not obligated to enforce federal law, but the feds absolutely can. The feds could raid every marijuana dispensary in the country and take them all down with barely a hiccup, at least from a legality standpoint. Yet they don't because we have decided to arbitrarily not enforce the law, even if we haven't changed the law.
I had really hoped after Trump's first term, we would have seen a real awakening to the amount of things that are allowed only because we don't actually enforce the laws that are on the books, and a real push to both fix the laws and roll back the abuses of executive power like this. But we didn't seem to learn that lesson, and sadly it doesn't look like that lesson is going to be learned this time either.
Yeah this is a dont come to USA to set roots advert basically. It is impossible to get PR without prison time.
> with his British wife and their 4-month-old baby
Ridiculous.
Family values.
Congrats, Trump voters, you’re getting exactly what you specifically voted for. Revel in it. Hardened criminals, here, while ICE refuses to go after anyone vaguely dangerous.
Well done. Peter Thiel is proud of you.
So this is a topic I follow and I could speak at length to all the anti-immigrant actions taken by this administration. It's every aspect of the immigration process. This isn't only a stricter enforcement policy or a stricter interpretation of certain rules but things that are arguably illegal.
For example, one of the requirements for naturalization is "good moral chracter". Well, what does that mean? Up until this year, that's simply been the absence of any disqualifying criteria, such as unpaid taxes, unpaid child support, most felony convictions, etc. This administration has reinterpreted "good moral chracter" to be affirmative, something you need to provide proof of, rather than the absence of anything negative. This is arguably illegal.
Anyway, back to this article, one example here is from San Diego. This article doesn't mention it but there was a leaked memo where USCIS and ICE are trialling a new process in the San Diego field office of having the interviewing visa officer call in ICE to detain applicants in cases they never did before.
For context, overstaying a visa isn't a crime (unless you get deported then do it again, basically). It's a civil infraction. There are lots of immigration benefits you can't get if you're out of status however but marriage to a US citizen is an exception. Visa overstays and unauthorized work are generally forgiven in those cases, by law. So such people were never detained because their overstays were forgiven so what's the point?
There are also people who did not enter through a regular port of entry. Legally, this is called "entering without inspection". This includes people who sneak across the border. It also includes a bunch of people who were infants or children at the time so never made a choice. This was the basis for the DACA ("Deferred Action for Childhood Arrivals") program under Obama. There are people who are now adults who have lived here since they were a few months old who have never known anywhere else. Deporting them to a country they've never known is cruel and unusual.
So another thing this administration has done has created a policy whereby all those who entered without inspection can be detained and should be denied bond.
Here's a partial list of other sins of the administration just off the top of my head:
1. Most visibly, the ICEstapo raids;
2. Skin color can now be used as a factor for an immigration stop thanks to an "emergency" ruling by this Supreme Court, granting a petition by the government. Location can be another factor so it's now completely legal to do an immigration stop on someone who looks Hispanic in the vicinity of a Home Depot, for example.
3. Ended TPS ("Temporary Protected Status") for a bunch of countries, putting refugees and asylum seekers out of status;
3. Immigration judges, unlike Federal judges, are not ARticle 3 judges (by the Constitution). ARticle 3 judges are nominated by the president and confirmed by the Senate and cannot be fired. They have to be impeached. Immigration judges are simply employees of the executive branch. This administration has started firing immigreation judges if they approve too many cases;
4. People such as Kilmer Abrego Garcia were deported to El Salvador, a country he feared returning to, in defiance of a Federal court order blocking his deportation to El Salvador. When taken there he was put in a maximum security prison (ie CECOT);
5. The government then for the longest time refused to fix their error, including openly defying Federal judges;
6. Revoking the lawful permanent residence status of Mahmoud Khalil for hurting Israel's feelings by saying factually accurate things about Israel's war crimes and organizing peaceful protests at Columbia;
7. Black bagging detainees and moving them interstate before their families know so a local judge can't block their detention and order them released. In fact, they take them to the jurisdictions of friendly judges in places like Louisiana. This is the ultimate in judge shopping;
8. For visa applicants outside the US, this administration has begun forcing people to go to the consulate in their home country rather than the country they live in. This puts in limbo people who come from countries with which the US currently has no consulate. This is an intentional delay tactic as a person may study or work in the UK but be a citizen of Ghana or Nigeria where there is a 2-4 year wait for a visa interview. This is intentional.
9. Arbitrarily decided that humanitarian parolees under Biden were "illegally" paroled into the US and are now seeking to detain and deport these people;
10. Deporting people to so-called third countries ie not to that person's country of origin or even a country they might otherwise choose under voluntary departure;
I'm sure there's more. It's a shame only the ICEstapo raids really get any media attention.
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Oh you can declare anything… but the minute you don’t pay you taxes you’ll realize it’s just words.
So you saying states should exit the union?
How? They have more guns than I do.
The $ is mightier than the gun.
They also have more $ than I do.
While I personally find no objection to these spouses remaining here, I don't see what is really supposed to concern me from a legal perspective. There is no right to residency of migration in general. I do agree we ought to change the law to be make it easier for spouses of citizens, but if you overstay a visa you should expect detention.
However from a moral standpoint I find the infant child separation abhorrent and think that we should generally defer to American citizen spouses as a pretty good indicator that we should show some mercy in enforcement. Moreover, the law should be changed that foreign spouses without criminal records and not taking public benefit ought to be allowed to stay and work honestly. Make it easy.
I think this was explained before. But basically the processing takes so long (over a year) that you are guaranteed to overstay most visas and leaving the US is considered as abandoning your petition for a green card.
So you are in this limbo state where you are given some kind of status while the application is pending and you absolutely can’t leave the country.
But that’s not the issue here nor why people are being detained.
People came to the US with intend to marry and apply for a green card on non immigrant visa. For instance British citizens on a visa waiver can just show up and get married. That’s legal.
But it turns into immigration fraud if you always intended to apply for a green card afterwards.
What you are supposed to do is apply for a K1 fiancé visa which takes another year.
>but if you overstay a visa you should expect detention.
I really dont get this view.
Like you could substitute detention with a 1 dollar a day fine, or community service. Why does the punishment for this particular crime, have to be detention. Why is it worse than making your local council mad for not taking out the bins. The severity of the punishment is just ludicrous compared to the crime of participating in a community, and the US isnt the only place with this brainrot.
The community isn't harmed by an overstay as it is with say, shooting people or stabbing people. In fact it seems widely recognised that these people contribute in the net positive.
It also seems like there's an overwhelming consensus that its easier to sort out immigration issues from inside the target country, outside of detention with access to legal representation.
> if you overstay a visa you should expect detention
Again, though, there's a catch-22. Wait times until you're even notified about your interview appointment date are long and unpredictable.
The article strongly misrepresents this, and they were almost certainly not detained for over-staying, but likely for fraudulent entry. See my other comment.
A capricious, arbitrary, hard to satisfy legal system that's filled with catch-22s doesn't concern you?
Is it because only immigrants and their families are subjected to an unfair legal system, so it doesn't seem to be your concern? In a democracy, the actions of a government are collective. We all bear responsibility for injustice and a corresponding responsibility to pursue a more just system.
Except it's not an overstay--you're automatically in status while there is an application pending.
I've found that it's quite futile to expect American citizens to actually understand how their own visa and immigration laws work.
Unfortunately it doesn't stop them from having strong opinions about them.
My understanding is that the validity of the visa has nothing to do with whether you are "in status". The visa is for entry and authorized status allows you to stay in the US. You could be authorized to stay in the US and yet have to petition to get a re entry permit should you choose to leave the US temporarily.
Now I wrote this and even I am not sure if what I wrote is fully correct. I know it is correct for at least one scenario but I anal and I am sure there are scenarios where what I said is not just false but dangerously bad advice.
I remember talking to a britisher about the US border situation on a forum that also included yanks. He had asked for advice, and I relayed a bunch that was evergreen, but was passed around during the first trump admin.
The yanks all got confused, like I was making up a problem. And would not stop pretending like there are no border issues even after I presented multiple instances as evidence. Like if you can drive your car to the store and back there must also not be issues at the airport.
I feel like US media must isolate people severely. Whereas, countries that do business with the US, are kept keenly aware of the dangers.
Case in point: public charge and political rhetoric that (at the very least) wildly stretches the truth about immigrants applying for benefits.