My spouse unknowingly overstayed her F1 visa. Can we still submit her adjustment of status?

[Debchayan 0]

I am a green card holder(US permanent resident) and my spouse is/was a F1 student. Her i130 was approved 9 months ago. But we have not filed for her adjustment of status yet. She was going to pursue a higher degree in the same university after her graduation in May. Her university did not notify her that she needs to update the i20 within 60 days as a result she is out of status now for one month. Her university is advising her to apply for reinstatement. But to decide that we need to know if we can still file for her adjustment of status(i485) at the same time or should we wait for one or the other? Can anyone please suggest the best way to get out of this deep trouble or share their insight into the situation?

[SusieQQQ 11,586]

If there has been any violation of status, she cannot adjust status as the spouse of a green card holder. It doesn’t matter if her status gets reinstated later, the fact that she has ever been out of status is a bar to adjustment on this basis. She can go home to get a visa by consular processing once the i130 is processed and an interview scheduled (assuming her overstay was less than 180 days, otherwise she incurs a ban) or she can wait for you to become a citizen and then adjust as the bars to adjustment do not apply to immediate relative categories.

See section F here https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-2  where I have bolded below the relevant extracts - the category for the bar is “ In Unlawful Immigration Status on the Date the Adjustment Application is Filed OR Who Failed to Continuously Maintain Lawful Status Since Entry into United States OR Who Continues in, or Accepts, Unauthorized Employment Prior to Filing for Adjustment” and the period to be considered is “All entries and time periods spent in the United States (departure and return does not remove the ineligibility)”

Note that I am assuming the reinstatement puts her back in status from that point but does not “wipe out” the prior status violation. If it somehow does that and she ends up with no overstay on her record at all, then she will be ok to adjust, once she has confirmation of that.

[SusieQQQ 11,586]

Is it this same wife? Why didn’t you file i485 back then? That would have preempted your current  issues …

 

 

[Debchayan 0]

8 hours ago, SusieQQQ said:

Is it this same wife? Why didn’t you file i485 back then? That would have preempted your current  issues …

 

 

Yes she is the same wife. We could not submit i485 back then because of sponsorship issue. We were about to submit it in next two weeks. But from what you have shared it seems like we can not do an adjustment of status anymore if there is no overstay forgiveness for her situation. Can she do a consular processing while she continues to stay in the US? She will do a F1 reinstatement application with her university, in case it gets denied will it be counted 180 days towards banned while it is pending.  

[SusieQQQ 11,586]

44 minutes ago, Debchayan said:

Can she do a consular processing while she continues to stay in the US?

Yes. She will just fly back to her home country for the interview.  I am not sure what you have done so far after the i130 was approved, so don’t know if you might need to fill in i824 to get it moved to a consulate, what did you put on the DS260 for interview location?

 

I don’t know the details of how reinstatement works and whether or not pending pauses the existing overstay, sorry.

[Debchayan 0]

14 minutes ago, SusieQQQ said:

Yes. She will just fly back to her home country for the interview.  I am not sure what you have done so far after the i130 was approved, so don’t know if you might need to fill in i824 to get it moved to a consulate, what did you put on the DS260 for interview location?

 

I don’t know the details of how reinstatement works and whether or not pending pauses the existing overstay, sorry.

Thanks for your reply. We did not do anything else since i130 application. 

[SusieQQQ 11,586]

6 minutes ago, Debchayan said:

Thanks for your reply. We did not do anything else since i130 application. 

You said it was approved 9 months ago, did you get notice from NVC to pay fees etc?

[Debchayan 0]

32 minutes ago, SusieQQQ said:

You said it was approved 9 months ago, did you get notice from NVC to pay fees etc?

We filed for the i130 while staying in the US with the US address. We only received an I-797 in our address in the US.

[SusieQQQ 11,586]

28 minutes ago, Debchayan said:

We filed for the i130 while staying in the US with the US address. We only received an I-797 in our address in the US.

@HRQX do they need to file i824 to get it in line for CP?

[HRQX 4,145]

14 minutes ago, SusieQQQ said:

@HRQX do they need to file i824 to get it in line for CP?

Yes, OP should file Form I-824 with $465 filing fee and the I-130 approval notice: https://www.uscis.gov/i-824

 

https://www.uscis.gov/sites/default/files/document/forms/i-824instr.pdf "If you are requesting USCIS to send your approved immigrant visa petition to the NVC, select Item Number 1.d."

 

Also:

 

[arken 4,197]

4 hours ago, Debchayan said:

We filed for the i130 while staying in the US with the US address. We only received an I-797 in our address in the US.

Check on your i130 if you have chosen for AOS in the US or consular processing abroad.

[Debchayan 0]

On 8/27/2021 at 3:03 PM, arken said:

Check on your i130 if you have chosen for AOS in the US or consular processing abroad.

It is AOS yes. 

[Debchayan 0]

On 8/27/2021 at 11:42 AM, HRQX said:

Yes, OP should file Form I-824 with $465 filing fee and the I-130 approval notice: https://www.uscis.gov/i-824

 

https://www.uscis.gov/sites/default/files/document/forms/i-824instr.pdf "If you are requesting USCIS to send your approved immigrant visa petition to the NVC, select Item Number 1.d."

 

Also:

 

Does it mean if we change to consular processing now, it will take one year just to send it to NVC?

[arken 4,197]

53 minutes ago, Debchayan said:

Does it mean if we change to consular processing now, it will take one year just to send it to NVC?

Likely.

[Debchayan 0]

4 minutes ago, arken said:

Likely.

Why it would take so much time just to send something? Is not it takes only a week after i130 approval if consular processing was selected at first?