AOS from an OPT overstay as a spouse of LPR

[bklyn24601 17]

Hello friends,

We got married (2018) while I was on my OPT and my husband was an LPR. My opt was expiring shortly, so we decided it would be smart for him to naturalize first and then I would adjust status, since overstays are not forgiven for LPR spouses.

My husband has applied for naturalization in Nov 2019 and still doesn't have an interview date, but his case completion says November 2020 (in 3 months), so we hope it'll be soon.

My question is: would filing for AOS now (as an overstay spouse of the LPR) and updating his status from LPR to USC once he gets the naturalization certificate speed things up a little? (even by a month or two?)

 

Thank you in advance

 

 

[pablo2752 106]

Overstay for LPR is not forgiven. It is only forgiven if your spouse is a USC. 

~~Since you are a spouse of LPR, I assume your case is F2A, which is current right now. If I were you, I would file I-130(and I130A)/I-485/I-765/I-131 like yesterday. ~~

 

Edited August 4, 2020 by pablo2752

[bklyn24601 17]

1 minute ago, pablo2752 said:

Overstay for LPR is not forgiven. It is only forgiven if your spouse is a USC. 

Since you are a spouse of LPR, I assume your case is F2A, which is current right now. If I were you, I would file I-130/I-485/I-765/I-131 like yesterday. 

Thank you! 

any idea how long it will stay current?

 

[geowrian 22,338]

Not sure why you waited until you were out of status...you could have filed before OPT expired and you may have had your green card (or at least EAD + AP to work and travel) by now.

 

You do not qualify to apply for AOS right now since you are out of status, so applying would only result in a denial. You cannot become eligible after filing (and have it approved - you would need a new I-485).

 

5 minutes ago, pablo2752 said:

Overstay for LPR is not forgiven. It is only forgiven if your spouse is a USC. 

Since you are a spouse of LPR, I assume your case is F2A, which is current right now. If I were you, I would file I-130/I-485/I-765/I-131 like yesterday. 

My understanding is they are now out of status already ("would filing for AOS now (as an overstay spouse of the LPR)"). If so, they cannot AOS at this time.

Edited August 4, 2020 by geowrian

[pablo2752 106]

No idea, but it's the best to submit it ASAP. Because consulates have stopped most of immigration processes, the visa bulletin is moving very fast. 

I would hire a lawyer because I-944 is a huge amount of paperwork, and yes, it's been put on the injunction, it can be repealed anytime soon. Why didn't you file it yet? 

 

 

Quote

My understanding is they are now out of status already ("would filing for AOS now (as an overstay spouse of the LPR)"). If so, they cannot AOS at this time.

 

Oh right, I thought she was still on OPT. You can't file AOS now.  Did you not know that once you file AOS, your stay in the US is still legal under "pending AOS" even after OPT expires? 

Edited August 4, 2020 by pablo2752

[bklyn24601 17]

3 minutes ago, geowrian said:

Not sure why you waited until you were out of status...you could have filed before OPT expired and you may have had your green card (or at least EAD + AP to work and travel) by now.

 

You do not qualify to apply for AOS right now since you are out of status, so applying would only result in a denial. You cannot become eligible after filing (and have it approved - you would need a new I-485).

 

My understanding is they are now out of status already ("would filing for AOS now (as an overstay spouse of the LPR)"). If so, they cannot AOS at this time.

just to be clear, I can't file AOS now until my husband is a USC?

I can only file after he gets his naturalization certificate?

 

[geowrian 22,338]

Just now, bklyn24601 said:

just to be clear, I can't file AOS now until my husband is a USC?

I can only file after he gets his naturalization certificate?

 

Are you in status right now?

[bklyn24601 17]

Just now, geowrian said:

Are you in status right now?

Nope, as I said, an opt overstay.. 

[geowrian 22,338]

Just now, bklyn24601 said:

Nope, as I said, an opt overstay.. 

Then you do not qualify to file for AOS until your spouse is a US citizen.

[bklyn24601 17]

9 minutes ago, pablo2752 said:

No idea, but it's the best to submit it ASAP. Because consulates have stopped most of immigration processes, the visa bulletin is moving very fast. 

I would hire a lawyer because I-944 is a huge amount of paperwork, and yes, it's been put on the injunction, it can be repealed anytime soon. Why didn't you file it yet? 

 

 

Oh right, I thought she was still on OPT. You can't file AOS now.  Did you not know that once you file AOS, your stay in the US is still legal under "pending AOS" even after OPT expires? 

at the time I was under the impression that by the time of the interview (as an LPR spouse) if I didn't have a status my application would be denied..

 

[pablo2752 106]

If you can afford it, I would hire a good lawyer to handle your case since we live in such a turbulent time. 

Edited August 4, 2020 by pablo2752

[bklyn24601 17]

1 minute ago, pablo2752 said:

If you can afford it, I would hire a good lawyer to handle your case since we live in such a turbulent time. 

Thank you! I can see that I'm gonna have to..

[little immigrant 801]

14 hours ago, bklyn24601 said:

just to be clear, I can't file AOS now until my husband is a USC?

I can only file after he gets his naturalization certificate?

 

Correct. That's what I did but it was before the pandemic however my husband has a green card now. Tourist visa overstay, I was a green card holder. Applied for and got citizenship and then we filed i-130 & i-485 and the other forms. I'm not saying this is ideal or advised but this is happened in my case. 

[wagecuck3 31]

17 hours ago, bklyn24601 said:

Hello friends,

We got married (2018) while I was on my OPT and my husband was an LPR. My opt was expiring shortly, so we decided it would be smart for him to naturalize first and then I would adjust status, since overstays are not forgiven for LPR spouses.

My husband has applied for naturalization in Nov 2019 and still doesn't have an interview date, but his case completion says November 2020 (in 3 months), so we hope it'll be soon.

My question is: would filing for AOS now (as an overstay spouse of the LPR) and updating his status from LPR to USC once he gets the naturalization certificate speed things up a little? (even by a month or two?)

 

Thank you in advance

 

 

As others have said, you can't file the I-485 now. You can only file it after your husband's naturalization is complete.

What you CAN do, however, is that your husband can file the I-130 now and have it "upgraded" after he becomes a US citizen. This can save some processing time, since in general the I-485 cannot be approved until the I-130 has been approved.

However, this also carries a risk: the filing can make USCIS realize that you have overstayed, which can trigger removal proceedings.

So I would definitely consult an attorney before taking this step.

[bklyn24601 17]

3 hours ago, little immigrant said:

Correct. That's what I did but it was before the pandemic however my husband has a green card now. Tourist visa overstay, I was a green card holder. Applied for and got citizenship and then we filed i-130 & i-485 and the other forms. I'm not saying this is ideal or advised but this is happened in my case. 

Thank you! did you hire a lawyer?