• 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.

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:

To adjust status under INA §245(a), a person must have been:

• Lawfully admitted (e.g., entered with a visa), or

• Paroled into the U.S.

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))