filing I-485 for spouse during J1 grace period? (merged threads)

[mike q 0]

Hi all, I'm a green card holder filing for my spouse's I-485.  we've filed I-130 last year.

 

Problem with I-485 is we had to wait for the J-1 waiver (no objection letter) and it's currently pending with DOS, and we expect to get the J-1 waiver final approval from USCIS around mid-May. While we wait for the J-1 waiver, my spouse's J-1 visa is expiring on 4/30 and her 30-day grace period will kick in. 

 

1. Is it a problem if we file the I-485 during her J-1 grace period?  we want to file when we have the final USCIS approval. 

2. if we don't get the final USCIS approval by 5/30, end of her grace period, we would have to file I-485 to keep her in the US with only DOS approval. would that pose a problem?

Edited April 17, 2021 by mike q

[aaron2020 11,651]

You need to file BEFORE her status ends on 4/30.  

If you file during her grace period, she will be out of status.  Her AOS will be denied since overstay is not ignored for the spouse of a green card holder.  

[Crazy Cat 41,885]

29 minutes ago, mike q said:

Hi all, I'm a green card holder filing for my spouse's I-485.  we've filed I-130 last year.

 

Problem with I-485 is we had to wait for the J-1 waiver (no objection letter) and it's currently pending with DOS, and we expect to get the J-1 waiver final approval from USCIS around mid-May. While we wait for the J-1 waiver, my spouse's J-1 visa is expiring on 4/30 and her 30-day grace period will kick in. 

 

1. Is it a problem if we file the I-485 during her J-1 grace period?  we want to file when we have the final USCIS approval. 

2. if we don't get the final USCIS approval by 5/30, end of her grace period, we would have to file I-485 to keep her in the US with only DOS approval. would that pose a problem?

If she overstays at all, she will be denied.

[mike q 0]

right, how do you define "overstay" though?  does overstay begin on her last day of visa, or last day of grace period?

Edited April 17, 2021 by mike q

[Crazy Cat 41,885]

6 minutes ago, mike q said:

right, how do you define "overstay" though?  isn't the purpose of grace period is for people to get ready to leave, or change status?   the question is whether she's out-of-status during grace period and I haven't seen a clear answer on that.

https://j1visa.state.gov/participants/current/adjustments-and-extensions/

 

"During this 30-day grace period, participants are no longer in J-visa status, and are under the jurisdiction of the USCIS. The USCIS grants this period to allow participants to settle their affairs and to prepare to return to their home countries. Program participants may no longer continue and/or complete exchange activities, nor may they work. Although participants may travel in the United States, it is recommended that they do not travel beyond the borders of the United States as they may not be permitted reentry."

Edited April 17, 2021 by Lucky Cat

[Crazy Cat 41,885]

She will be granted authorized stay only if she files a proper I-485....with no periods of overstay.

[mike q 0]

but doesn't it seem odd that if staying during grace period is overstay, then what's the point of grace period?  or maybe I missed your point?

 

 

[Crazy Cat 41,885]

4 minutes ago, mike q said:

but doesn't it seem odd that if staying during grace period is overstay, then what's the point of grace period?  or maybe I missed your point?

 

 

Maybe you missed this part: "The USCIS grants this period to allow participants to settle their affairs and to prepare to return to their home countries. "

[mike q 0]

I see. thank you

[Crazy Cat 41,885]

Just now, mike q said:

I see. thank you

I would most definitely talk to an immigration attorney.

[mike q 0]

FYI, I've talked to multiple attorneys but their answers are divided...

[mike q 0]

so I wanted to come here and see if anyone has gone through similar experience and what was the outcome.

[aaron2020 11,651]

Here's the bottom line.  As the spouse of a green card holder, your wife must have a legal status in order to qualify to adjust status.

 

After her J-1 expires, she would be out of status and not qualified to adjust status.  Authorized stay during her 30 days grace period is NOT a legal status.

 

Her grace period allows her to be in the US to wrap things up to leave the US.  That's it.  It's not good for other purposes such as staying in the US to adjust status.

[HRQX 4,145]

5 hours ago, mike q said:

we've filed I-130 last year.

Looks like the no objection letter might not be available before 04/30. Thus if the I-130 is still pending try to switch to consular processing. If the I-130 is already approved file Form I-824 with fee so that USCIS forwards it to NVC: https://www.uscis.gov/i-824

4 hours ago, mike q said:

during grace period

After 04/30 she won't be eligible for Adjustment of Status per INA 245(c)(2) bar: https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-3 "Officers consider the difference between lawful immigration status and a period of authorized stay when determining whether an alien is in lawful immigration status for purposes of the INA 245(c)(2) adjustment bar."

Edited April 17, 2021 by HRQX

[mike q 0]

I think there's another argument that help build the case that we should file I-485 by 4/30, though please correct me.  1/ filing by 4/30, the worst case is I-485 denial due to lack to J1 waiver approval at the time of I-485 submission. 2/ filing by 5/30, the worst case is I-485 denial due to ineligibility- filing after J1 visa expires.  I think it would be a lot more difficult to build an appeal case in the second scenario vs the first as we could probably just re-submit I-485 with the waiver approval in first scenario.

Edited April 18, 2021 by mike q