Will they send me back to Russia because I overstayed? 13 Answers as of July 29, 2013

I overstayed my tourist visa for 16 months when I came by J1 visa. My spouse, a US citizen, didn't follow the taxes for past 2 years. We have a child together. And my international passport expires within a year. Can they send me back to Russia when I'll start my paper work?

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Law Office of Adebola Asekun | Adebola O. Asekun
By remaining in the US beyond the period of your authorized stay, you have fallen into unlawful status. Any alien not in status is likely to be subject to deportation when such alien comes into contact with DHS even if the alien is married to a US citizen.
Answer Applies to: New York
Replied: 7/29/2013
Herrera & Juelle LLP | Carlos Juelle
If you are married to a U.S. citizen and have a U.S. citizen child, USCIS will give you every opportunity to become a resident of the U.S. The fact that your passport expires within the year is irrelevant, and you can renew it if needed. However, the facts you provide as to how you entered the country are not clear and depending exactly how you entered, you could have some issues when you try to adjust your status.
Answer Applies to: California
Replied: 7/26/2013
The Islas Muñoz Law Firm, PLLC
The Islas Muñoz Law Firm, PLLC | Pamela Genghiní Muñoz
Technically the government can deport you at any time now that you no longer have lawful status. However, if your spouse files a petition for you then the department of citizenship and immigration services will likely adjudicate your application first. If your application is denied you will then be put the in removal proceedings before an immigration judge.
Answer Applies to: Texas
Replied: 7/25/2013
Havens & Lichtenberg PLLC
Havens & Lichtenberg PLLC | Michael Lichtenberg
First of all, J1 is not a tourist visa. If you came on a J1 visa, it is possible that there is a condition attached to your admission, that, after your stay in the U.S. on this visa, you will live in your country for 2 years before you can get any visa or status in the U.S. (so-called 2-year foreign residency requirement). If your J1 visa has this condition, you cannot obtain a green card until you live in Russia for 2 years. There is a procedure to ask the government for a waiver of this requirement, but the waiver is very difficult to obtain. Second, if, in fact, you came on a tourist visa (B1/B2), or if your J1 does not have the 2-year foreign residency requirement, your wife has to file the tax returns. If there is any reason why she cannot do it, you will have to find a co-sponsor for your immigration. The co-sponsor has to be a U.S. citizen or permanent resident, and have income that is above the federal poverty level for his/her family +1 (for example, co-sponsor has a wife, 2 kids, and an elderly mother who he claims as a dependent on his taxes, he has to make over $39,487 a year (family of 5 plus the sponsored immigrant). You need to know that, technically, your wife would not have to present her tax returns if you will have a co-sponsor, USCIS can give you very hard time about it, and your attorney will have to walk a very fine line with this issue. So, it will be better if your wife files tax returns for the last 2 years. Third, you do need to have a valid passport at all times. Russian Consul General in New York can issue a new passport for you, of course, but the procedure takes 3-4 months, so you will have to contact the Consulate well before your passport expires. Fourth, USCIS will not try deport you when you file the paperwork for a green card; they will do it if they deny your application.
Answer Applies to: New York
Replied: 7/25/2013
LAW OFFICES OF S. OUYA MAINA | SAMUEL OUYA MAINA
Provided you file before ICE becomes aware of you, you should be okay, assuming you are not subject to the 2 year foreign residence requirement.
Answer Applies to: California
Replied: 7/25/2013
    Christian Schmidt, Attorney at Law
    Christian Schmidt, Attorney at Law | Christian Schmidt
    You can apply for a green card and cannot be sent back while the application is pending or once you received your green card.
    Answer Applies to: California
    Replied: 7/25/2013
    Law Offices of Grinberg and Segal
    Law Offices of Grinberg and Segal | Alexander Segal
    You can be placed in removal proceedings at any time if you are not in a valid legal status. The filing of a marriage-based case in and of itself will not likely trigger removal proceedings. You should file sooner rather than later.
    Answer Applies to: New York
    Replied: 7/25/2013
    The Law Office Kevin L. Dixler
    The Law Office Kevin L. Dixler | Kevin Lawrence Dixler
    That's unclear, but possible. More information is needed. We need to determine whether you are subject to the 2 year residence requirement known as INA 212(e). You may be eligible 'to file' for adjustment, but a joint sponsor seems necessary. If you qualify to file for adjustment, and are not disqualified, then they should allow you to stay if you properly file. I strongly recommend an appointment or teleconference with a competent and experienced immigration attorney, soon.
    Answer Applies to: Illinois
    Replied: 7/25/2013
    Law Offices of Svetlana Boukhny
    Law Offices of Svetlana Boukhny | Svetlana Boukhny
    No you will not be sent back. As long as you entered the U.S. lawfully and can prove that lawful entry, you are eligible to adjust status to permanent residence on the basis of marriage to a U.S. citizen even if you have overstayed.
    Answer Applies to: California
    Replied: 7/25/2013
    Immigration Law Offices, LLP
    Immigration Law Offices, LLP | Fakhrudeen Hussain
    You are eligible to apply for Green Card based on marriage to a US citizen. However, on your J1 if you had a 2 year foreign residency requirement, you may have to get a waiver to apply for Green card without leaving the U.S.
    Answer Applies to: California
    Replied: 7/25/2013
    Law Office of Bill Travis Klein
    Law Office of Bill Travis Klein | Bill T. Klein
    Whether you get removed from the U.S. after you apply for a green card will depend on the type of J Visa you have and whether you are subject to the "return to your country for 2 years" requirement. In addition, the details of your marriage will be a factor. Please consult with an Immigration Attorney to review your immigration papers and marriage information so the attorney can walk you through the process and help you with the necessary legal paper work.
    Answer Applies to: California
    Replied: 7/25/2013
    Richard S. Kolomejec, Attorney at Law
    Richard S. Kolomejec, Attorney at Law | Richard S. Kolomejec
    No way. You have nothing to worry about. If done right, the entire process should take only 3 months. And you will not have to leave the U.S.!
    Answer Applies to: California
    Replied: 7/25/2013
    Law Office of Pho Ethan Tran PLLC
    Law Office of Pho Ethan Tran PLLC | Pho Ethan Tran
    As long as your J-1 visa does not indicate that you are subject to the 2-year residency requirement and there is no other issues of inadmissibility, you should be eligible to apply for adjustment of status despite the fact that you overstayed and are no longer in legal status.
    Answer Applies to: Texas
    Replied: 7/25/2013
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