Switch from I-130 to I-485

[Jlet 0]

After long consideration my husband decided to switch from filing his I-130 abroad to filing an I-485 to adjust status here (due to a medical situation with our daughter). We tried to expedite things with the I-130 however it was taking longer then we expected. I spoke with a "level 2" person at USCIS and they said we could file the AoS (I-485). My question is this..

My husband came here on the VWP 9/16/12. His passport stamp expires on 12/14/12 (originally he had a plane ticket for 12/12/12 to go home). Once we send in the I-485 and get the NOA1 for it will he be considered here "illegally" once the stamp date passes? or does the notice work as like a temp type of stamp allowing him to be here. I only ask because we are rushing around like crazy to get everything sent out by Fri so that we "should" get that NOA1 before his stamp expires. I'm just confused since he didnt come here with a visa.

Also if lets say 12/14 passes and we havent got the 1st notice, then it is denied for whatever reason, will he be banned from the US for going past his passport stamp day? Is there a grace period before he gets a ban? I only ask this b/c if for whatever reason we can't file here he would go home but of course I dont want him banned for 10 years. I'd like to avoid that if we can.

Thank you for any help

[Ryan H 3,812]

Moved from IR-1/CR-1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas forum as this is the process the OP's spouse will now be going through.

[MrMadCat 18]

I overstayed the VWP by several days and as far as I am aware, as soon as he's allocated an alien number with the NOA, he's in a period of authorized stay. I believe bans take place after 180 days for a 5 year ban, or so. As for VWP, if a person overstays they can't use it again for whatever time. I've heard of people being able to re-enter on advance parole with < 180 days overstay, and others not. Someone with more experience can chime in.

[Harpa Timsah 13,258]

Overstay is irrelevant for spouses of USCs who adjust in country (any ban is triggered on exit). Once his I-485 is accepted for initial review, then yes, he enters into a NEW period of authorized stay. Any time between his VWP expiry and that date will be overstay days. If he gets up to 180 of them, then he shouldn't travel on AP and should wait until his GC is approved. A few days overstay won't matter at all for any purpose Good luck.