[Exsur]

Hi Experts,


I know I will probably eventually need to find an immigration lawyer regarding my situation, but I thought I'd get my research started on here!


Let me start by saying that my boyfriend and I are a same-sex couple. I met him last year in USA, and we are planning to get married in the next year. However this is the situation, he came here from Thailand on an F-1 student visa to study in a language school here. Unfortunately he overstayed his visa and it has been around 5 months since he overstayed. As for me, I am a Thai citizen, and I've had a Permanent residence card since '07 but only started living in the USA since September 2013. From 2007-2013 I was living in Thailand for college and traveled back to USA every 10-11 months to only stay around 2 weeks to 1 month time each trip.


Back to my boyfriend and I, as I know he can marry me but since I am only a green card holder now, that doesn't grant him automatic access to the green card. From what I've read online, if we get married while I'm still a permanent residence, it is required for him to go back to Thailand to wait for his green card there. Moreover, since he overstayed his visa, he will be banned from entering the US for 3-10 years.




Here are a list of questions I have that needs your help clarifying:


1. I know my travel history will definitely disrupts my continuous residence and I will need to stay another 4 years to complete the 5 years residency before I'm able to apply for citizenship is that correct? If not, how long do I have before I can begin the naturalization process?


2. Once I get married with him next year, should I petition for a green card for him right away or should I wait until I'm naturalized before filing a petition?


3. We are thinking to start building supports to prove that our marriage is bona fide. We will open a joint account/ joint credit cards, proof of same address with him, etc. Will this increase his risk of getting deported or should we just lay low? He's afraid that if there are records of where he actually lives, immigration officer would come and take him.


4. In case of us filing the petition for green card for him while I'm still a permanent residence and he gets a ban of 3 or 10 years. Can I file an unlawful presence waiver for him by showing extreme hardships? What's the possibility of it being approved?


5. Is there any other way that he can stay in the US and adjust his status here?


6. What are the other options for us at this point?


Thank you so much for your help!

[newacct]

If you petition him after marrying, yes, you are right that it will be in the F2A category (spouse of permanent resident). And you are right that even when the visa number is available, he won't be eligible to do Adjustment of Status in the U.S. because he is in a non-Immediate Relative category and he is not in status. Therefore, he would have to do Consular Processing with the U.S. consulate in his home country.

He should not have a ban. You said he was an F-1 student. People entering on F-1 (except really short programs less than a year long) as a rule always get admitted with "D/S" (Duration of Status) on their I-94s. (You can check his I-94.) This means there is no fixed time his status expires. Because he do not have a date on his I-94, he do not automatically start accruing "unlawful presence" when he goes out of status. It doesn't matter that he's been out of status for years. The only ways he can start accruing "unlawful presence" is if there is a final deportation order against him by an immigration judge, or if he applied for some benefit to USCIS and is denied due to being out of status. Neither of these are things that normally happen.

No "unlawful presence" = no unlawful-presence ban. Therefore, he can just wait in the U.S. until his visa number is available, and go abroad just for the Consular Processing part.

Or, if you wait until you naturalize, he would then be eligible to do Adjustment of Status in the U.S. because he would be in the Immediate Relative category, so he doesn't need to be in status. If you naturalize and you had already filed a petition as a permanent resident, the petition can be upgraded to reflect the new category (although in that case it would be no different from waiting till naturalization to file the petition).