Divorce and remarriage under USCIS -- sponsoring another spouse:In family processing, with a USC spouse, as long as the immigrant arrived on a valid visa (and can prove this -- inability to prove this is a mess and the subject of much consternation, gnashing of teeth and occasionally litigation), her overstay will not impact filing during the I-130/I-485 process. She is at risk, of course, of getting tossed out on her "behind" PRIOR to the filing of the I-130. However, once the I-130 is floated in the system, she is fine (from a deportation standpoint). Be sure to file the I-130, I-765, and I-131 along with the I-485. That's a work permit (I-765) and advanced parole granting the right to leave the country (and return!) during the pendency of the adjustment process (I-131).
The rule is 90 days. If you client enters the country and get's married within 90 days, you will have problems. Earlier than 30 days, and you're toast. There is a rebuttable presumption (good luck, though) of marriage fraud if you marry before 60 days. 60 - 90 is a red flag. After ninety is generally fine. See: http://www.state.gov/documents/organization/87011.pdf. This is known as the 30/60/90 day rule and should be a lens through which all B2 marriage apps are considered in your office (just sayin'). See also generally http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-3422.html
Alright, so in a nutshell, dump the current spouse, marry the new chico/chica once you're clear from bigamy laws, and you should be fine. The overstay won't hurt if she arrived as a B2 (because she marries a USC), and the intent is not a problem as she is well outside of 90 anyway.
Need help with I-130/I-485 sponsorship? Questions about family immigration? Give us a ring! We're here to help. 703-402-2723.
Sean Hanover, Esq.
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006