Legal Question in Immigration Law in New York

Re: Illegal to marry a green card holder

From the information you have provided, I would say that you do not need to wait until she becomes a citizen. If you have further questions you can contact me at 212-986-1544 for a free consultation.

Re: Illegal to marry a green card holder

Urgent: you are currently 'out-of-status' and I very much recommend that you rectify this deficiency immediately.

Submitting an application for legal status under your fiance's permanent residency status will rectify the problem. You may or may not, depending on current policy (this is a procedure that regularly changes) be asked to file again after your marriage, but do not let that stop you from filing now.

I urge you to rectify your 'out-of-status position immediately.

Regarding your question, you may file based on her permanent residency. She does not need to be a citizen for you to qualify.

Currently, a fiance does have standing to file for status as the fiance of a permanent resident and you may begin the paperwork now.

(This seems to contradict my earlier, more ambiguous statement, but we are dealing with the INS and regulations are changed regularly. My point is, get some petition to the INS to address your out-of-status situation now and be less concerned with what the INS will do with that paper. This is an important issue for you.)

Re: Illegal to marry a green card holder

1. The current wait for natives of most countries in the second preference category is over four years. If your fiancee is able to undergo naturalization shortly, you may want to consider waiting because you would then be entitled to an immediate visa based on a U.S. citizen spouse.

2. Your overstay does present a problem that, depending on the facts of your case (which I do not know), may or may not be overcome. An overstay of 1 year results in a 10-year bar to admission into the United States. Although your permanent resident fiancee may be able to file a petition on your behalf, beneficiaries of such spousal petitions generally have to be in lawful status in order to be able to adjust to an LPR status or seek an immigrant visa from an overseas U.S. consulate. One exception to this rule is marriage to a U.S. citizen (but not to a permanent resident).

3. If your overstay or other violations of status make you inadmissible (and your fiancee/spouse is not a U.S. citizen), applying for adjustment of status is not a solution and may in fact result in the initiation of a removal (deportation) proceeding, depending on the nature of immigration violations. Similarly, if you are subject to a 10-year bar and are deemed inadmissible, leaving the U.S. and applying for an immigrant visa overseas would not help. You may be eligible for a waiver, but this would entail a complex legal analysis not suitable for this forum.

Overstay situations present special risks and should be addressed by immigration attorneys because proceeding without competent legal advice may result in serious consequences to the person who is out of status.

Note that this reply is in the nature of general information, is not legal advice and should not be relied upon as such.