Q: will I be able to adjust status despite I overstayed a previous visitor s visa?
I overstayed my visitor s visa for less than 180 days. My husband is a LPR and filed i130 to petition for me, but it hasnt been approved yet. Im currently outside the USA and considering applying for a second visitor s visa to avoid being separated from my husband for too long. If our i130 was approved while Im in the USA, would I be able to adjust status despite I overstayed a previous visitor s visa?
A: Aside from the fact that one should not use a visitor visa with the specific intent to pursue adjustment of status at the time of entering as a visitor, which could result in a fraud allegation at an adjustment of status interview, whether you will be adjustment of status eligible also depends on whether your priority date will become current while you are in the United States. Currently there is no backlog in the F-2A (spouse of permanent resident) category, but one never knows in future visa bulletins whether there may be retrogression in any particular category. Consider scheduling a consultation with a competent immigration attorney who can review all of the fine details with you. Some attorneys offer online Skype consultations for those who are not physically present in the United States.
A:
If you are an intending immigrant , as your fact pattern seems to indicate, then you are not eligible for the B-1/B-2 non- immigrant visa.
You and your spouse should wait for the approval of the relative petition and request the transfer of the file to the NVC. Upon complying with the NVC requirements , the case will be routed to the U.S. consulate in your home country for the immigrant visa processing.
Good luck to you.
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