US citizen Petitioning my wife who was out of status when she was in H1B. What to do ?
Hi, I m a US citizen. we got stuck in a few questions. If you could help us out , it would be great.
1. We re applying for both I130 and I485. Can we submit both on the same day ? We noticed that we can't submit I485 online. We have to mail it to USCIS.
2. Since she was out of status since 2009 till 2015 (lost status during 2008 recession) , will it impact the decision.?
3. In I485 form, Part 9. Question No 76. asks :
" Since April 1, 1997, have you been unlowfully present in the US ? You were unlawfully present in the United State if you were present in the US after the expiration of the period of stay authorized by the DHS Secretary or were present in the US without being admitted or paroled. "
Do we say "YES" ?
Thank you for your help.
USCIS have made drastic change in form i-485 recently after trump took office and nobody understands the reason why ??
I am 100 percent sure that you will recieve rfe’s OR your wife be called for consular processing
Earlier there used to be an option for those who married US spouse would erase the overstay automatically. Now they have removed that and made it really difficult to achieve greencard for all catogaries.
USCIS is planning to interview each and everyone for all catogories and trying to delay everything .
ice will entrap and deport
Do yourself a massive favor and grab complete immigration history via FOIA before you file. You can snag your wife's records here: https://www.uscis.gov/records/request-records-through-the-freedom-of-information-act-or-privacy-act and then click on Step #4.
And if you're even a little bit unsure about anything, talk to an immigration lawyer. It's worth the peace of mind.
Best of luck with everything, OP! 👍
Thank you Sql_Server for the positive info.
We have been living together for the last 10 years and have all those immigration documents saved with us.
Our only concern is that in (76) we found online that some said she didnt accrued unlawful presence. So question (76) is "No" even though she stayed here after H1B overstay ?
And another concern is should we send both i130 and i485 together in MAILor file i130 first ONLINE and then in a few weeks send i485 with the receipt received from the USCIS ?
Thank you
Out of status for 8 years and applying greencard via US spouse in this time. YOU are DOOMED .
Jayaaa ji, My advice for you is to connect with a good immigration lawyer. It seems like she had a lot of unlawful presence which can trigger a ban. Unless you are a practicing attorney, it is very difficult to understand the intricacies of the legal system. DO NOT answer NO if you're not sure about unlawful presence. If you lie in the application, then it will create more headache for the future. Spend some money and hire an experienced immigration attorney.
Last edited: 21-Apr-25 03:53 PM
Being out of status for such a long period is a red flag. If your wife's case is denied, she might be get detained and deported. Better that your wife self deport to Nepal and file the petition. Always hire a lawyer.
She entered lawfully but overstayed her visa. That overstay, while a violation, does not preclude adjustment of status. If she is married to a United States citizen, no statute stands as a bar to her pursuit of lawful permanent residency.
Select "YES."
The best approach I’ve seen is to mail both forms together in the same envelope (USPS priority mail flat rate-the red one). Make sure to get a delivered or received alert. And the right address.
If she has TPS granted on or after 2015, make sure to list the unlawful presence dates as the time before her TPS approval date on page 24. And write a short note on unlawful presence since 2009-—maybe 4 lines.
She entered the U.S. legally on an H-1B visa. In 2008, during the recession, she lost her job and couldn’t find a new sponsor, which caused her to fall out of status. She remained in the U.S. due to personal and financial hardship. After 2015, she was granted Temporary Protected Status (TPS).
Alright, OP — that particular question isn't crucial. What truly matters is whether your wife qualifies for any waivers of inadmissibility that would allow her to adjust status. Provide accurate information in that section; the officers are primarily evaluating your honesty.
I'm assuming your wife is currently on TPS and she originally was inspected and admitted on F-1 or H1. let’s walk through this situation step by step to identify which bars may apply, and what waivers or exceptions are available under INA 245(c) and related provisions.
If re-entered using Advance Parole:
1. Unlawful Presence Bar – INA 212(a)(9)(B)
Yes, unlawful presence occurred due to overstay.
However, this bar only applies if the person departed the U.S. after more than 180 days of unlawful presence.
If the person never left the U.S., the 3-year or 10-year bar is not triggered.
If the person left and returned using Advance Parole, courts and USCIS generally do not count that as a departure that triggers the bar — but it depends on how parole was handled.
2. INA 245(c)(2) – Unauthorized Employment / Failure to Maintain Status
This bar applies to someone who overstayed or worked without authorization.
Waiver available for immediate relatives of U.S. citizens (spouses, parents, unmarried children under 21).
So, this bar is waived in your case since the person is married to a U.S. citizen.
3. INA 245(c)(8) – Left U.S. After Accruing Unlawful Presence
This bar applies only if the person leaves the U.S. after more than 180 days of unlawful presence.
But USCIS and most courts do not treat departure on Advance Parole as triggering this bar.
So, if they re-entered with Advance Parole, they may not be barred under 245(c)(8).
If they left without Advance Parole, they likely triggered the 10-year bar and cannot adjust status without a waiver (Form I-601).
4. Lawful Admission or Parole for Adjustment Purposes (INA 245(a))
To adjust status, a person must have been:
Lawfully admitted, or
Paroled into the U.S.
F-1 was a lawful admission, but going out of status broke that continuity.
TPS may help here: Courts in certain circuits (6th, 9th, and others) have held that TPS counts as a constructive admission/parole, allowing adjustment through a U.S. citizen spouse.
If the person re-entered with Advance Parole, they are considered paroled and can adjust status under 245(a) without needing to rely on circuit precedent.
|
Bar |
Applies? |
Waivable or Exception? |
|---|
| Unlawful presence (212(a)(9)(B)) | Maybe | Only if they departed after 180+ days w/o AP |
| 245(c)(2) – Out of status | Yes | Waived for immediate relatives of US Citizens |
| 245(c)(8) – Departure after UP | Maybe | Not triggered if AP was used properly |
| 245(a) – Must be admitted/paroled | Maybe | Covered if entered on AP or TPS in right circuit |
Yes, they are eligible to adjust status under INA 245(a), and none of the 245(c) bars block them in this situation.
If no Advance Parole/never left the country:
1. Problem: Must Be “Admitted or Paroled” Under INA 245(a)
To adjust status under INA §245(a), a person must have been:
In this case:
Your wife originally entered with an F-1/H-1 visa = lawful admission
But later fell out of status, which means they did not maintain lawful status.
Adjustment is still possible if the applicant is an immediate relative of a U.S. citizen — the law forgives most 245(c) bars in that category (see below).
2. Bars That Apply (INA 245(c))
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