File I-485 after visa has expired?

[Khonqc07]

Hello everyone,

I am a green card holder sponsoring for my spouse. Our priority date will become current this November (the earliest) or in December or so. However, his student visa will expire by the end of October. I wonder if he is eligible to file the adjustment of status after being out of status for a few months? I did some research and realized that if my spouse were applying for a green card based on being the immediate relative of a U.S. citizen (which I am not in this case unfortunately), his unlawful presence would not count against him (and thus can file the I-485 regardless of the status). Any suggestion?

Thanks a lot!

[NuclearPenguin]

My wife is out of status for several years. Not sure about GC, but in case with USC overstay is forgiven.

[Khonqc07]

My wife is out of status for several years. Not sure about GC, but in case with USC overstay is forgiven.

Thank you for your response. I know his overstay would be forgiven if I were a US citizen by the time we submit the I-485. Unfortunately, my application to US citizenship has been delayed. I got my biometrics done on May 29th and my interview is still in line for schedule. I don't know what would be best for this dilemma. Should he stay here illegally until I got my citizenship (which I don't know when) or should he go back to his home country and do the consular processing? Any recommendation?

Thanks a lot!

[bandk]

You cannot be sure how long would take your citizenship but since her visa will expire in October and you are far into your citizenship process, I'd wait and submit AOS the next day after I get citizenship.
After October it would take at least few months for ICE to look for her if she doesn't leave the country. Before that happens you count on submitting AOS. The moment AOS receipt is in hand she's legal to stay. I believe you would be fine. All depend on your citizenship approval.

I am not sure about filing as a PR. If she overstays , will it be forgiven if you are PR? I think not from top of my head. Right now I cannot look up for it.

This is a serious decision and do not take my word for it. I tell you what would make sense given the info I have from you.

[aevi]

Thank you for your response. I know his overstay would be forgiven if I were a US citizen by the time we submit the I-485. Unfortunately, my application to US citizenship has been delayed. I got my biometrics done on May 29th and my interview is still in line for schedule. I don't know what would be best for this dilemma. Should he stay here illegally until I got my citizenship (which I don't know when) or should he go back to his home country and do the consular processing? Any recommendation?

Thanks a lot!

Hello Khongc07,

I would suggest to settle first your citizenship before you can petition your wife.This is more faster in processing your wife's petition. If her visa will expired its either you can file extension or since you guys are already married its ok for overstay. Once your end is settle, apply for you wife adjustment of status and petition. As long as your marriage is real nothing to be worried about.

I hope this will help.

Thank you and Goodluck