็้H1b spouse

[bokehsky9]

Hi all. i entered the states with a student visa, and i overstayed. My husband just got his I-140 approved and now he is waiting for his PD being current. My question is can i adjust my status at the same time when he files his I-485?

If yes, do i need? or what i need between i-601/601a form? since i m illegally staying in the states now

Thanks for you help

[scientist2016]

Unfortunately, you cannot do AOS. In your category, your stay has to be legal for you to do AOS.

[newacct]

Hi all. i entered the states with a student visa, and i overstayed. My husband just got his I-140 approved and now he is waiting for his PD being current. My question is can i adjust my status at the same time when he files his I-485?

If yes, do i need? or what i need between i-601/601a form? since i m illegally staying in the states now

Thanks for you help

In an employment-based category, you are not eligible for AOS unless you have been out of status or working illegally for less than 180 days since your most recent admission. I am assuming that you will have been out of status for more than 180 days by the time a visa number becomes available, so you won't be able to do AOS. In that case, your husband can file I-824 with his I-485, so that after his I-485 is approved, his petition will be moved to NVC to allow you to follow to join by Consular Processing.

Leaving the US to do Consular Processing may or may not trigger a ban depending on whether you have accrued "unlawful presence" prior to leaving. It is tricky because USCIS issued a rule that someone in F/J/M status accrues "unlawful presence" whenever they are out of status after August 9, 2018, but a court injunction has stopped application of that rule. It is unclear what the final status of this rule will be by the time you do Consular Processing. Without this rule, you would generally not accrue "unlawful presence" unless you stayed past the date on your I-94, and if you were an F1 student, you likely were admitted for "D/S" instead of a date, which means you did not start accruing "unlawful presence" (unless you applied to USCIS for a benefit and were denied with a determination that you were out of status, or you were given a final order of removal in immigration court; either of these things can also start "unlawful presence"). In that case, it is possible that you will trigger no ban upon leaving the US, in which case you would not need a waiver. If you will trigger a ban upon leaving the US, you will need a waiver. You can apply for a "provisional waiver" of the unlawful presence ban before you leave the US by filing I-601A once you have paid your visa fees.

[bokehsky9]

Unfortunately, you cannot do AOS. In your category, your stay has to be legal for you to do AOS.

thank you so much

[bokehsky9]

In an employment-based category, you are not eligible for AOS unless you have been out of status or working illegally for less than 180 days since your most recent admission. I am assuming that you will have been out of status for more than 180 days by the time a visa number becomes available, so you won't be able to do AOS. In that case, your husband can file I-824 with his I-485, so that after his I-485 is approved, his petition will be moved to NVC to allow you to follow to join by Consular Processing.

Leaving the US to do Consular Processing may or may not trigger a ban depending on whether you have accrued "unlawful presence" prior to leaving. It is tricky because USCIS issued a rule that someone in F/J/M status accrues "unlawful presence" whenever they are out of status after August 9, 2018, but a court injunction has stopped application of that rule. It is unclear what the final status of this rule will be by the time you do Consular Processing. Without this rule, you would generally not accrue "unlawful presence" unless you stayed past the date on your I-94, and if you were an F1 student, you likely were admitted for "D/S" instead of a date, which means you did not start accruing "unlawful presence" (unless you applied to USCIS for a benefit and were denied with a determination that you were out of status, or you were given a final order of removal in immigration court; either of these things can also start "unlawful presence"). In that case, it is possible that you will trigger no ban upon leaving the US, in which case you would not need a waiver. If you will trigger a ban upon leaving the US, you will need a waiver. You can apply for a "provisional waiver" of the unlawful presence ban before you leave the US by filing I-601A once you have paid your visa fees.

thank you so much. you answered everything i wanted to know.