Trouble applying for I-485, need an advice..

[Skyler Jordan]

Hi All,

I need a second opinion, my lawyer is not very responsive lately.

Long story short, my wife's I-130 is approved. However, we cannot move forward because she is out of status. I'm not a US Citizen, just a green card holder.

What is the best way for her to proceed on I-485 application?

I appreciate your time reading this. My wife has been through a lot and I want to make this as easy as possible for her. I felt like I dragged her here and our lawyer made it sound easy, in reality, it's been VERY difficult.

[newacct]

What status did she enter on? Does it say an admit-until date on her I-94, and if so, how long has it been since that date? Or does it say D/S on her I-94?

Basically, there are two options. The first option is for her to do Consular Processing abroad, which requires her to leave the US to attend the interview abroad and get the immigrant visa. But leaving the US will trigger a ban if she has accrued more than 180 days of "unlawful presence" (the amount of "unlawful presence" is generally the amount of time from when her I-94 expired to when she leaves, but it could be more complicated than that, if she was under 18 during that time, if she had DACA/TPS/etc., if she had a pending Change of Status/Extension of Status/asylum application at some point, etc.). Accruing 180 days of unlawful presence and then leaving the US will trigger a 3-year ban; accruing 1 year of unlawful presence and then leaving the US will trigger a 10-year ban. An immigrant waiver for this ban is possible if she can show that you will suffer "extreme hardship" if she can't be in the US. Extreme hardship is pretty hard to establish. If she wants to go this route, she can file I-601A to apply for a provisional waiver while she is still in the US and get the result before she decides to leave the US.

The other option is for her to wait in the US until you become a US citizen, and then file I-485 for Adjustment of Status. She would be in the Immediate Relative category, and so would be eligible for AOS despite being out of status, regardless of how long she has been out of status. In this case, she would not have a ban and would not need a waiver. I don't know how long you are to being able to naturalize. During this time she would remain deportable if caught.