spouse's expired visa & I-94(duration of status, want to apply for green card, help!!

[anonymous_010177]

i am on valid H1B, spouse entered USA on valid F1 in 1998 but it expired within a year, he discontinued his studies, i dunno y. his I-94 says "D/S" which means duration of status. I have my 140 approved recently. lawyers suggest doing consular processing. but my spouse has an expired visa and I-94 as D/S, and its risky to leave US. he may b denied.
can some one please suggest what to do? i am confused should i apply 485 just for myself and once approved and become citizen then apply for my spouse??? or should I do consular process? is there any waiver i can apply for my spouse and how do i? and what are the risks involved. I badly need some help..

[PraetorianXI]

Again, I ask.

Was he informed by USCIS, ICE, the school? that he was out of status? if so, he SHOULD NOT leave the US as he is subject to a 3-10 year ban.

[anonymous_010177]

Thanks for replying. He did not get any notice. He had an expiry date on his visa . Does the 3-10 yr ban still apply on him?

[PraetorianXI]

If he was never notified that he was out of status, then probably not. But I would not "risk it". File a FOIA request (at your own risk) to USCIS and see what happens.