i485 are you applying based on 245i ? married to USC

[Catsinthislife 1]

I am a US citizen and married to my Brazilian born wife. she over stayed her tourist visa 8 years ago we have been married for a year now  and she did do some  unauthorized work in the past. we are in the process of concurrent filing i-130 1-485 and have been truthful about working and over staying.

 

Do we need to select YES under the Question 11 page 4 on the i-485

"Are you applying for adjusment based on the immigration and nationality act (ina) section 245(i) ?"

 

at first we said yes because of the overstaying and un authorized work could be grounds for admissibility  , but upon filling up supplement A of  i485 I don't understand the wording if she is  meets any of the eligibility requirements.

I also saw in the law that because she is married to a US citizen she is somewhat forgiven and maybe we don't need to check yes for INA 245 i and just send in the i485

 

 

[arken 4,197]

27 minutes ago, Catsinthislife said:

Do we need to select YES under the Question 11 page 4 on the i-485

"Are you applying for adjusment based on the immigration and nationality act (ina) section 245(i) ?"

That isn't applicable to your wife, select No.

[Catsinthislife 1]

thank you! but should we be concerned about grounds of inadmissibility because of her over stay and un authorized work ?

[Boiler 45,855]

Are you a USC?

[Catsinthislife 1]

2 minutes ago, Boiler said:

Are you a USC?

Yes!

[Boiler 45,855]

That is good

[powerpuff 6,746]

~ Moved from AOS K1/K3 to AOS from Student, Tourist & Work Visas - OP’s spouse came on a tourist visa, not fiancé ~

[Catsinthislife 1]

Will we need to apply with i601a ? Or is that after we send our i130 and i485 . I’m trying to see if we will have problems and need to send this waiver because of the grounds of inadmissibility.

[davidvs 354]

11 hours ago, Catsinthislife said:

Will we need to apply with i601a ? Or is that after we send our i130 and i485 . I’m trying to see if we will have problems and need to send this waiver because of the grounds of inadmissibility.

No waiver needed.

 

1) She entered on a tourist visa, so she entered "with inspection". She is eligible to adjust status from within the US. The bar only applies if she leaves the country before AOS. Overstay for a spouse of USC is forgiven.

2) Unauthorized work for a spouse of USC is forgiven.

[bobarola 5]

On 9/21/2021 at 1:08 PM, Catsinthislife said:

Do we need to select YES under the Question 11 page 4 on the i-485

"Are you applying for adjusment based on the immigration and nationality act (ina) section 245(i) ?"

To answer with more context, 245-I is mostly meant for non-immediate relatives of USC, who had a I-130 filed before April 2001. And immediate relatives who entered without inspection. For example, siblings of USC, spouse that crossed the border, etc. 

 

You also do not need to file Supplement A

Spouse of USC is an immediate relative. If they entered the US legally (ie tourist visa), overstay and unauthorized work is forgiven.

Edited September 24, 2021 by bobarola