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Filing i485 for Undocumented Spouse

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  • Filing i485 for Undocumented Spouse

    Hi Everyone,
    I recently got my Green Card (less than 1 year) and after that, I got married to my spouse who came here as an F1 (International Student) but did not continue her studies and she has accrued unlawful presence for more than 2 years.
    What would be the best way for me to apply for her i-485. Is it even possible since she is out of status but did enter the US legally?
    I heard a lot about the waivers as well but do not understand on what merit it is given. I would really appreciate if someone has any idea about this situation. Thank you so much

  • #2
    Someone who is out of status is not eligible for Adjustment of Status (I-485) unless they are in the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen). Your spouse is the spouse of a permanent resident, and is in the F2A category. She is not eligible for Adjustment of Status. She has two options:
    1. Leave the US and do Consular Processing abroad for an immigrant visa. Leaving the US would trigger a ban if she has accrued more than 180 days of unlawful presence. However, as an F1 student, she was almost certainly admitted for D/S instead of a date on her I-94, and she hasn't accrued any unlawful presence, at least under previous rules. There was a memo in 2018 to start counting unlawful presence for F1 when out of status after August 9, 2018, but that memo has been blocked by a nationwide injunction.
    2. Continue to wait in the US until you naturalize, at which point she can immediately file I-485. However, if you've just got your green card less than a year ago, you still have more than 4 years before you can naturalize.

    This is my personal opinion and is not to be construed as legal advice.

    Comment


    • #3
      Originally posted by ravinmish View Post
      Hi Everyone,
      I recently got my Green Card (less than 1 year) and after that, I got married to my spouse who came here as an F1 (International Student) but did not continue her studies and she has accrued unlawful presence for more than 2 years.
      What would be the best way for me to apply for her i-485. Is it even possible since she is out of status but did enter the US legally?
      I heard a lot about the waivers as well but do not understand on what merit it is given. I would really appreciate if someone has any idea about this situation. Thank you so much


      Marry her and file for her. Do the I-130 and the I-485 concurrent and depending on the state you guys are in she can get her GC in a yr or less. I wouldn’t recommend having her go back to her home country. Since as she’s here already might as well do it from here. Also, you don’t have to be a USC to petition for her, you can petition as a greencard holder.
      Field Office: Hartford, CT
      PD: 5/21/2019
      Filed forms: I-130; I-485; I-765
      B1/B/2 married to USC
      5/21/2019: I-130 and I-484 received
      7/12/2019: fingerprint review complete
      8/29/2019: received rejected form I-485 due to bounced check
      9/11/2019: mailed new I-485 with new check and I-765
      10/22/2019: biometrics complete
      11/22/2019: ready to schedule interview
      12/18/2019: called USCIS and request exp on I-485
      12/20/2019: Expedite received and complete
      12/26/2019: I-765 approved

      Comment


      • #4
        Originally posted by HartfordCtFilerI-485 View Post



        Marry her and file for her. Do the I-130 and the I-485 concurrent and depending on the state you guys are in she can get her GC in a yr or less. I wouldn’t recommend having her go back to her home country. Since as she’s here already might as well do it from here. Also, you don’t have to be a USC to petition for her, you can petition as a greencard holder.
        No, she is not eligible for AOS in her category since she is out of status.

        This is my personal opinion and is not to be construed as legal advice.

        Comment


        • #5
          Originally posted by HartfordCtFilerI-485 View Post



          Marry her and file for her. Do the I-130 and the I-485 concurrent and depending on the state you guys are in she can get her GC in a yr or less. I wouldn’t recommend having her go back to her home country. Since as she’s here already might as well do it from here. Also, you don’t have to be a USC to petition for her, you can petition as a greencard holder.
          Wrong. A GC holder can’t petition his/her spouse in the country. They will need to do a consular processing for it.
          B2; AoS; Same-Sex Marriage:USC
          FO SanFrancisco

          3/30/18 PD
          4/20/18 Received 4 letters
          5/04/18 Walk In Biometrics
          5/14/18 Status update-CaseTracker, "Ready to be scheduled for interview"
          9/08/18 New card being produced-CaseTracker
          9/11/18 EAD/AP approved-uscis.gov
          9/12/18 Received tracking number for EAD/AP card
          9/14/18 Received EAD/AP
          9/17/18 Received Social Sec card
          2/17/19 Traveled abroad
          3/04/19 Paroled back in country using EAD/AP
          3/11/19 Submitted renewal of EAD/AP

          Comment


          • #6
            Originally posted by BayAreaCaliAOS View Post

            Wrong. A GC holder can’t petition his/her spouse in the country. They will need to do a consular processing for it.
            A GC holder's spouse can do AOS if they are in status. The issue here is the OP's spouse is out of status.

            This is my personal opinion and is not to be construed as legal advice.

            Comment

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