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If re-entered using Advance Parole:
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:
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))
| Bar | Does It Apply? | Waiver/Exception |
|---|---|---|
| 245(c)(2) – Out of status or unauthorized work | Yes | Waived for immediate relatives (USC spouse) |
| 245(c)(7) – Status violation in family-based case | Yes | Waived for immediate relatives |
| 212(a)(9)(B) – Unlawful presence bar | No | Only applies if person departs the U.S. |
So:
Falling out of status and working without authorization are not fatal — they’re forgiven for spouses of U.S. citizens.
Unlawful presence bar is not triggered unless the person leaves the U.S.
TPS does not by itself count as an “admission” in all circuits.
But in some circuits (e.g., 6th, 9th, and 11th), TPS is considered a constructive admission, which means even someone who entered without inspection (EWI) may be allowed to adjust.
In your case, the person was lawfully admitted on F-1/H-1, so TPS just helps them maintain a lawful status now — but it's not required for the adjustment.
4. Summary: Are They Eligible to Adjust?
YES, the person is eligible to adjust without leaving the U.S., if:
They entered on F-1/H-1,
Are now married to a U.S. citizen,
And never left the country (so they didn’t trigger any bars by departing).
The 245(c) bars are waived due to their immediate relative status
In either case, your wife remains eligible to adjust her status. I hope this information proves helpful. Good Luck!
Disclaimer:
I am not an attorney, and the information I share is based on personal research and experience. This does not constitute legal advice. For guidance specific to your situation, please consult a licensed immigration attorney or accredited legal professional.