I came to the US in 2005. I finished school and worked as OPT. But after OPT I overstayed here until 2016. In 2014 I got married and divorced in 2015, I didn’t file the paperwork for immigration at that time. In 2017 I came back to my home country. In 2018 I came to the US with a F1 visa, however I didn’t go to school any day. Now I get married to us citizen. I wonder what chance of getting a green card with uscis is.
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How long was your overstay - when did you stop being legal the first time? And what did you do between ending your overstay in 2016 and going back to your home country in 2017? Please edit the question to include this information.– DJClayworthCommented Feb 19, 2021 at 14:30
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And what is an OPT?– DJClayworthCommented Feb 19, 2021 at 14:32
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2@DJClayworth I think OPT is Optional Practical Training (OPT) for F-1 Students– Peter MCommented Feb 19, 2021 at 14:42
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3 Answers
You are going to need a lawyer.
The problems you have to overcome are many, including:
- A multi-year overstay
- A previous marriage and divorce, which will cast doubt on your current marriage
- An apparent violation of the terms of your current F1 visa
On the positive side, you were granted an F1 visa, which means US immigration does not appear to view your previous overstay as a major problem (or does not know about it).
Only a qualified immigration lawyer is going to give you anything like an accurate assessment of your chances of a Green Card, and you will need one to guide your application process.
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1"The problems you have to overcome are many, including: A multi-year overstay" "Overstay" does not by itself trigger a ban, and if there is no ban, it is not a problem for immigrating. There is a ban if they accrue more than 180 days of "unlawful presence" and then leave the US, but the OP was on F1 which are admitted on "D/S", and so do not generally accrue unlawful presence. Commented Feb 19, 2021 at 18:49
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1@user102008 I said nothing about a ban. But there can still be implications for visa issuance. If you haven't complied with previous visas then they are less likely to grant a new one. Commented Feb 19, 2021 at 18:52
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1First of all, they are applying for Adjustment of Status in the US, not for a visa. Second, on what basis would they deny it for "haven't complied with previous visas"? If it were a nonimmigrant visa, they could deny it for the generic reason of "failure to overcome the presumption of immigrant intent", but immigrant intent is not an issue for immigrating. Commented Feb 19, 2021 at 18:54
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1You may be right. But I would want a lawyer to be sure. Which is why I recommend OP gets a lawyer. Commented Feb 19, 2021 at 19:03
Since you are immigrating as the spouse of a US citizen, you are in the Immediate Relative category, so all that is needed is that you entered the US legally (which you did). Whether you are in status right now doesn't matter.
A bigger potential problem might be misrepresentation relating to your second F-1. You said that you didn't go to school for a single day. That makes it seem like you had no intention of going to school when you came on F-1, which would be a misrepresentation since you must be coming to go to school when you enter on an F-1 visa. (That's unless you can somehow prove that you intended to go to school when you entered but something unexpected happened between entry and the start of school to cause you not to be able to go.) Misrepresentation would trigger a lifetime ban, and if you have that, you would need to apply for a waiver together with your Adjustment of Status application.
answered Feb 19, 2021 at 19:00
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1"entered the US legally (which you did)": is that true even if the person entered on a student visa without having the intention of studying?– phoogCommented Feb 20, 2021 at 2:47
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1@phoog: Yes, someone is considered inspected and admitted if they presented themselves to the officer at the point of entry and did not claim to be a US citizen or permanent resident, and the officer let them in. This is true even if the person did not have a visa that would have allowed entry (Matter of Quilantan). Commented Feb 20, 2021 at 3:05
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1@phoog: I guess in cases of fraud it is less clear. In Emokah v. Mukasey (2008), the 2nd circuit said that fraudulent entry does count as admitted. But in Orozco v. Mukasey (2008), the 9th circuit said that it does not count. Commented Feb 20, 2021 at 3:31
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1Thanks for that update. The idea of a circuit split on an aspect of immigration law such as this one is truly weird. It seems to imply that people could be removable in some states but not others.– phoogCommented Feb 20, 2021 at 20:22
I would like to first point to DJClayworth’s post for the list of problems I was planning also to address: they are all valid points. Right now, I have a friend in a situation similar to yours, and here is what happened to him.
Because you are legally married to a U.S. citizen, the government is obliged to issue you permanent residence, if you can prove your marriage is legitimate. Because of the divorce and re-marriage, they told him to wait until he’s married for 2 years before applying for a Green Card.
Because of your status violations, you are very likely to be deported. My friend’s are not as bad, but they told him that if he wants a chance to have a Green Card, he must leave the U.S. voluntarily. So he ended up finding a job at the Czech Republic (though he is from the Ukraine, and doesn’t even have entry rights; but, his lawyer arranged to where they allowed him in since he came from the U.S.).
A violation of the F-1 visa is an exceptionally serious violation. I have a close relative who said he was going to look for a college to attend, and they allowed him in on an F-1 Visa (from Germany, so he was allowed to enter simply with an ESTAA). The next time he tried coming in, they asked him, which colleges he applied to. He didn’t, so they banned him from entry for 5 years, starting with the second visit; all of the minors who accompanied him were also deported, but not banned. This can easily happen to you when you try to apply for a Green Card.
So again, the DJ’s suggestion of getting a lawyer is a good one in your situation. That being said, being more familiar with the situation you describe, I thought I would share my experience.
Last caveat: the two situations above were both under Trump. Biden has said that he will increase immigration (though neither of my friends have had an update in the status yet). So most likely, if you wait a few more months, under Biden it will be even easier than under Trump.
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Why the downvote? Should I just delete my account and go to another site?– AlexCommented Feb 19, 2021 at 20:19
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2I didn't downvote, but there are several factual errors here. There are many reasons why the government can deny permanent residence to the legitimate spouse of a US citizen. Someone who has enough unlawful presence triggers a ban when they leave the US, but spouses can apply for adjustment of status even if they're unlawfully present, so leaving the US is a bad idea because it can set the process back by 3 or 10 years. Also, F-1 and ESTA are not compatible. If he entered using ESTA, he was not in F-1 status, and vice versa.– phoogCommented Feb 20, 2021 at 2:56
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"Because you are legally married to a U.S. citizen, the government is obliged to issue you permanent residence," NO THEY ARE NOT. This is a dangerous misunderstaning of American immigration law and could lead potential immigrants to making life alteringly bad decisions (such as what phoog suggested).– ouflak ♦Commented Feb 21, 2021 at 11:21
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Also, posting advice based on the speculative future political situation is always asking for bitter disappointment (and possibly trouble). We tend to discourage that here as it is akin to making predictions with a crystal ball. If you know for a fact that there are going to be, or have already been, changes to immigration law or executive policy, it shouldn't be a problem to include a link.– ouflak ♦Commented Feb 21, 2021 at 11:23
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@Alex, No need to delete your account. Please consider cleaining up the post. I can delete it for you until you make your updates. This will return to you any lost rep. And once your changes are made, the post will automatically go back into our ReOpen queue.– ouflak ♦Commented Feb 21, 2021 at 11:30