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Ely
Ely, Counselor at Law
Category: Immigration Law
Satisfied Customers: 100053
Experience:  Private practice in several areas, including immigration
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Hi Ely, My boyfriend and I (German citizen) want to get

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Hi Ely, My boyfriend and I (German citizen) want to get married, however his stay is up in three weeks. If we decide to to spontaneously get married what do we need to do so that he is not here illegally once the three weeks is up?


 


Will he be able to go back to Germany in the event of an emergency while his status is pending?


 


Thank you

Hello friend,

Thank you for requesting me. Can you please tell me:

1) Have we spoken before?
2) What type of visa is he here on - B2, or VWP, or another visa?
3) How long has he been here so far?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 3 years ago.

Hi Ely,


 


We have not spoken before. He entered one week ago on the VWP but was paroled because of a previous four day overstay.


 


Please let me know if you have any further questions.


 


Thanks

Thank you for your reply.

Please explain and tell me more about "but was paroled because of a previous four day overstay." What happened?
Customer: replied 3 years ago.

He was stamped for a 180 day stay on a visit to the U.S. last year, on that visit he stayed 94 days. When he returned to the U.S. last week they said he overstayed by four days even though he was stamped for 180.


 


Because of that they removed him from the VWP and stamped his passport with "paroled" and he has to leave three weeks from now.

Thank you for your reply.

On this website, I do not always get to give good news, and I am afraid that this is one of these times. We have to discuss several issues here before we summarize it all up together. Please, see below.

Dual Intent
When someone enters on a visitor visa, they should not have "dual intent." Dual intent means that one intends to stay in the US as an immigrant (for example, via marriage). A student visa does not allow dual intent. In other words, USIS does not want someone to enter on VWP/ESTA or some other temporary visa and avoid having to "properly" wait for visa based on marriage or a fiance visa. This is an important doctrine. Keep this in mind.

There is a presumption that one has dual intent already, under INA 214(b), 8 U.S.C. 1184(b). The applicant would have to show otherwise. While often this is overlooked especially if it has been 60+ days before the alien is married and files from the US, in your case, this is a risk. This is because he has already been cited once and has an alleged overstay, and, he is "on parole" and is due to leave. USCIS may not grant him the "overlook" discretion as it normally may - and no - they do not have to do it - it is at their discretion.

As such, it is highly recommended that to make things simply faster, but with highest chance of success, (1) you marry, but then (2) he goes back and waits a greencard based on the marriage. The wait time is about 6 months.

Now, you can always disregard this information and decide that you wish to chance it by adjusting his visa from inside the USA after marriage. This is not recommended as it may be denied (as explained above), but it is your choice, of course. I will provide steps for both scenarios:

Adjustment from Inside USA
This is in answer to your question:

If we decide to to spontaneously get married what do we need to do so that he is not here illegally once the three weeks is up?

Marry, and then then file to adjust him on a greencard based on marriage using the I-130/I-485 package. See here for a step by step basis. Cost is $1,405 for the I-130/I-485 package. He may work while the I-130/I-485 is pending if you send in an Application for Employment Authorization with the I-130/I-485. Wait time is about 6 months on average. Again, this is not recommended. However, while the I-130/I-485 is pending, he would be considered "legal." But if it is denied, he would have to leave, and you'd have to start the process all over again with him abroad (see below).

Will he be able to go back to Germany in the event of an emergency while his status is pending?

Only with advance permission via an I-131 (Application for Travel Document) filed and granted (normally for emergency family, medical, or really important business matters). Travel outside the USA without this I-131 while a petition is pending has the petition be voided automatically!

Adjustment From Outside the USA
Recommended. Marriage ASAP, but then he goes back within the 3 weeks. Then, you can file an I-130 for him so he can get his greencard visa and come over. Wait time is about 6 months on average. See here for a step by step basis. Fee is $420 plus miscellaneous, but is considerably cheaper than the first option.

I know, I just threw a lot of information at you. Please, review and digest. Let me know if you need anything else. Viel Glück!

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Customer: replied 3 years ago.
Thanks Ely. Would he be able to visit the U.S. while we are "adjusting status from outside the us"?

We are just trying to manage the time apart.
Friend,

You are very welcome and I am glad to answer this and any other follow ups.

Would he be able to visit the U.S. while we are "adjusting status from outside the us"?

Maybe. I know - what does that mean? Well, it depends. Recall that "dual intent" doctrine we talked about? USCIS, ICE, and CBP are very strict about this doctrine. This means that if they even think that he may overstay his visitor visa while the I-130 is pending, it would be denied. Ergo, he can try, but the decision is up to the government. Generally, they have not been allowing it, although lately I have seen examples of people coming on a VWP while they had an I-130 pending. However, he needs to spend at least three or so months back abroad before coming back on a VWP. If a VWP is denied, he can always try for a more traditional B2 visa via the US Consulate (same thing - tourist visa). But in the end, the decision is theirs...

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