Legal Question in Immigration Law in New Jersey
Filing I-130 for a spouse who is a ''B-2 overstay''
My brother-in-law is a LPR. His fiance arrived in the U.S. in June '06 on a B-2 visitor visa and her authorized stay ended on 12/30/2006. They got married here in the U.S. in October '06.
Obviously, she does not want to return to her native country and now he wants to file an I-130 for his new wife while she remains in the U.S., even though her authorized stay ended in December.
Will there be any complicatiions once USCIS processes her case?
Will it make any difference if he becomes an U.S. Citizen within the next 5 years, because the wait time now for an LPR filing for a spouse is about 5 years?
Will the I-485 Supplement A with $1,000 penalty fee be availabe to her?
1 Answer from Attorneys
Re: Filing I-130 for a spouse who is a ''B-2 overstay''
Your brother in law can file an I-130 immediately. However, because he is an LPR the visa for his wife to adjust will not be available for some time, as you suggested. Once he Naturalizes, she will be an immediate relative of a USC and will be able to adjust her status, as long as she otherwise qualifies.
Because she was inspected upon entry, there is no $1000 penalty, which is for individuals who qualify for Section 245(i).
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