Legal Question in Immigration Law in Minnesota

out of status & marriage?

I looked at the USCIS website, and got some basics- but as a practical matter, I'm not sure how things actually work in practice.

Here's the scenario:

Korean woman- came here on a B visa, she applied for an extension but was denied- she did not leave the US after the denial & expiration (expired January 09)

she is living with a man she is dating (he is a US citizen)- now they are talking marriage....

ultimately she & he want her to get permanent residency and eventually citizenship

So, 2 questions:

Is it just a matter of them getting married here in the US- him filing the I-130, her filing the I-485, and then going through the application process? And if so, do you know what kind of time frame they would be looking at?

Or, because she's here illegally now/or without status, is it wiser to go home, and apply for a fiance K-1 visa from Korea and go that route? (and if so, do you know how negatively her staying here after her visa expired would reflect on her?)

Just as a practical matter/in general- and from your experience what route do you think is more advisable?


Asked on 3/03/09, 5:03 pm

4 Answers from Attorneys
Michael Cho Law Offices of Michael Cho

Re: out of status & marriage?

It sounds like she qualifies for an adjustment of status based on marriage to a US citizen.

You may find comprehensive information here:

http://www.msclaw.com/Green_Card_for_Spouse.html

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Answered on 3/03/09, 5:06 pm
Rachel Baskin Rachel Baskin, Attorney at Law

Re: out of status & marriage?

If you get married in the US, you will need to file more than just the I-130 and I-485 with USCIS. Each state is different, but in NY and NJ marriage petitions are taking about 6-8 months, sometimes shorter sometimes longer. If you have no other immigration violations (and you should speak with an attorney to determine whether you are eligible) then you will be able to file the application immediately upon marriage.

It is not clear from your post when the B-2 extension was denied. In general, if your B-2 status expired more than 180 days ago, and you exit the US, you will be barred from re-entering for 3 years. Similarly, the application process generally takes longer if one spouse is outside of the US.

You should consult with an immigration attorney to discuss the right option for you as this reply does not constitute legal advice or create an

Attorney/Client relationship in the absence of an agreement for legal services/retainer with my office. This is just a place to start in deciding what to ask your lawyer.

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Answered on 3/03/09, 5:10 pm
Marc Seguinot Seguinot & Associates, P.C.

Re: out of status & marriage?

Hard to say without knowing ALL the facts, but if she has no criminal issues, I would advise marriage here and filing the one-step adjustment package (I-130, I-485 and I-765 simultaneously). I suggest highly getting a good immigration lawyer to do the filing -- one mistake could cost big time! Good luck!

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Answered on 3/03/09, 5:13 pm
Vincent Martin Cundy & Martin, LLC

Re: out of status & marriage?

Our office is located in Bloomington, MN. Based on the information you provided, we would proceed to file your case for processing from within the U.S. We typically would not recommend the K-1 fiance visa in this situation.

If things go smoothly, cases of this type in Minnesota generally take about 6 months. Contact our office if you would like to meet in person or discuss the case further.

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Answered on 3/04/09, 11:49 am


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