Can I file AOS?

[alexb0000 0]

Me : LPR

My wife : She has an approved I-130, visa number is current but she has more than 1 year of unlawfull status (entry visa J1).

 

Our plan was to departure from US and have the interview in our home contry, but that was before the accrual of unlawfull presence rule changed for the J1 visas. Since August 9th 2018, they started to accrual unlawfull presence so if we go home to the interview (we don't have a date yet), she will have a 10 years ban.

 

My question is: Can I file an AOS for her if she has unlawfull presence but she is physically present in US?

 

What other options do we have?

[Crazy Cat 42,448]

My understanding is that the answer is no, since you are not a US citizen.

[geowrian 22,338]

Nope - unlawful presence is not ignored in your case.

[Radkova 11]

How soon can you apply for N400? You'd have to be a US citizen in order to apply for her.

[alexb0000 0]

In about 3 years. It’s too much for her to stay in the US without a decent job or possibility to move in/out the country. 

 

Do you guys have any information about the waiver or the provisional waiver? Or I have to post on a different topic? 

[geowrian 22,338]

21 minutes ago, alexb0000 said:

In about 3 years. It’s too much for her to stay in the US without a decent job or possibility to move in/out the country. 

 

Do you guys have any information about the waiver or the provisional waiver? Or I have to post on a different topic? 

The provisional waiver is an I-601A. If she has accrued 180+ days of unlawful presence (as appears to be the case), then the I-601A waives this bar. Just note that the I-601A only covers unlawful presence  - any other inadmissibility will cancel the approved I-601A and require an I-601 after the interview (ETA: an extra ~1 year or so).

 

The process is to apply for the I-601A and await approval while the case is at NVC. While no waiver is guaranteed, I-601As tend to regularly be approved with a decent presentation. After approval, she would attend an interview abroad.

Edited April 22, 2019 by geowrian

[alexb0000 0]

Thanks geowrian,

 

So she has to apply for I-601A in her name, while she is still in the US ?

[Crazy Cat 42,448]

43 minutes ago, geowrian said:

any other inadmissibility will cancel the approved I-601A and require an I-601 after the interview (ETA: an extra ~1 year or so).

Does that mean that after the interview she might learn that she needs an I-601?  Then, she would file it?

Edited April 22, 2019 by missileman

[geowrian 22,338]

21 minutes ago, alexb0000 said:

So she has to apply for I-601A in her name, while she is still in the US ?

An I-601A can only be filed while in the US. It's unavailable to anybody abroad.

 

8 minutes ago, missileman said:

Does that mean that after the interview she might learn that she needs an I-601?  Then, she would file it?

If the visa is refused for a reason other than the unlawful presence bar, then yes.  The I-601A effectively dies at that point. Examples include criminal inadmissability, public charge issues, etc.

 

If the only issue is the unlawful presence bar, then the I-601A will cover that and the visa can be issued.

[alexb0000 0]

Ok, I understand now. Thank you for your help guys! I’ll try to keep u posted.