Visitor Status Expiring: Are We in Implied Status?

[AmeriCanadian91 3]

I am a US Citizen and my husband is a UK Citizen. He entered the US under a visitor status, through the Visa Waiver Program, which expires November 27, 2021. This means, he will be in unlawful status. We submitted Form I-130 online, on November 21, 2021. We plan to mail out the corresponding I-485 package today. 

 

I'm wondering if there's a chance he will be considered illegal or in unlawful status. When is implied status achieved: at the time of I-130 submission, at the time the I-485 package is DELIVERED, or at the time that the I-485 package is ACCEPTED (meaning someone has opened the mail and entered our application into their system)? If it's the latter, I'm afraid that won't happen by November 27 because of the upcoming Thanksgiving holidays. I assume that even if it's delivered tomorrow, someone won't get to it until next week at best.

 

If that's the case and my husband is in a period of unlawful status, what happens? Is it irrelevant because he's immediate family of a USC? Will it negatively impact our case in any way? If so, is there anything we can/should do about it?

[Crazy Cat 41,840]

There is no "implied status".  Once his I-94 expires, he will be out of status, and he will be deportable (if not protected).  But, Once a proper I-485 (accepted) is filed, he will still be out of status, but he will be granted authorized stay in the US until the I-485 is either approved or denied.  Authorized stay is not a legal status, but he will not accrue unlawful presence during authorized stay.  This site explains it pretty well, imo.

 

https://www.murthy.com/2018/12/17/differences-between-lawful-status-period-of-authorized-stay-unlawful-presence-2/

 

Previous unlawful presence is not a bar for adjustment for an immediate relative of a US citizen.

Edited November 23, 2021 by Crazy Cat