I-601 with I-485 Question... Don't you always file I-601 with Overstay?

[k39482 0]

I have been reading quite a bit on this board. I have noticed something a bit odd to me that perhaps someone can help explain.

It appears that any time a USC wants to file AOS for a spouse and the spouse has been in the U.S. for, say 2 years over the original visitor visa (or similar), this person would need to also file for I-601, correct?

The reason I am asking is because I seem to recall reading at many places that overstay is automatically forgiven in the case of a USC's spousal AOS. I am pretty sure I read that on this board as well.

So if you are a USC and filing for AOS and the spouse has overstayed, do you have to file for I-601 or not?

Based on the extensive reading of actual USCIS materials, it seems you should always file I-601 if your spouse has overstayed and you are filing AOS. Since overstay is ground for inadmissibility, shouldn't you always file for I-601 and AOS can only be granted of I-601 is filed if overstay exists? I fail to see how it can be optional in this case.

So why have I read quite a bit on this board that overstay is forgiven in case of a spousal AOS? What did I miss?

Edited September 30, 2011 by k39482

[Brother Hesekiel 2,236]

Nope.

The I-601 is a waiver for a bar that the foreigner triggered when leaving the US after having been unlawfully present for at least 180 days. If that happened, there's no way back into the US unless an I-601 waiver has been approved, among other things.

If the beneficiary is in the US filing for AOS, he or she can't have left. Without leaving the US no bar is triggered and thus no waiver is needed.

[k39482 0]

Nope.

The I-601 is a waiver for a bar that the foreigner triggered when leaving the US after having been unlawfully present for at least 180 days. If that happened, there's no way back into the US unless an I-601 waiver has been approved, among other things.

If the beneficiary is in the US filing for AOS, he or she can't have left. Without leaving the US no bar is triggered and thus no waiver is needed.

Hi Just Bob - Thank you.

If you look at I-601 form, there is a checkbox for filing it with I-485. In fact, it states in the instruction that the form I-601 is for "An alien who is ineligible to be admitted to the United States as an immigrant or to adjust status in the United States..."

In other words, people who have overstayed would seem to require to file I-601 along with I-485...

[JimVaPhuong 4,863]

Hi Just Bob - Thank you.

If you look at I-601 form, there is a checkbox for filing it with I-485. In fact, it states in the instruction that the form I-601 is for "An alien who is ineligible to be admitted to the United States as an immigrant or to adjust status in the United States..."

In other words, people who have overstayed would seem to require to file I-601 along with I-485...

There is a general requirement that an AOS applicant must be lawfully present in the US in order to be eligible to adjust status. That requirement does not apply to someone adjusting status based on being an immediate relative of a US citizen.

In-country I-601's are used when someone cannot otherwise adjust status because of an inadmissibility. It's for ANY sort of inadmissibility that's eligible for a waiver. For example, if someone was inadmissible because of a minor crime they had been convicted of then they might be able to file an I-601 with their I-485. It's not specifically for overstays.