Expired visa. Can I file i-485?

[UndocHelp]

Hi everyone.

i had a student visa that expired 2 years ago. I currently live in US.. I am married, and my husband is a permanent resident. We have a child together and our child was born in US. My husband wants to file a I-130 petition. Can I file an adjustment of status too? I contacted an attorney and he said there's nothing I can do.

[newacct]

US visas are only for entry, and don't matter when you are inside the US. What matters for your stay inside the US is your status. Are you maintaining F1 status?

[UndocHelp]

No I didn't maintain my F1 status.

[newacct]

Since you are not in the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen), you cannot do Adjustment of Status when you are already out of status. You have two options:

1. Do Consular Processing abroad to get an immigrant visa (the process is that you have to wait until the I-130 is approved, then it goes to NVC and the consulate, who will contact you about the next steps). Usually, the problem with Consular Processing is that it requires leaving the US, and leaving the US will trigger an unlawful presence ban if you have accrued more than 180 days of unlawful presence. Specifically, if you accrued 180 days of unlawful presence and then leave the US, you trigger a 3-year ban; if you accrued 1 year of unlawful presence and then leave the US, you trigger a 10-year ban. However, in your case, you most likely have not accrued any unlawful presence, since you are in F1 status, so you were almost certainly admitted with "D/S" on your I-94 (check your I-94 to make sure). Since you don't have a date on your I-94, you do not automatically start accruing unlawful presence at any point, as long as you did not apply for a benefit to USCIS and get denied, and you did not get put into removal proceedings in immigration court. Since you won't trigger a ban upon leaving, you can wait until the time of the consular interview, leave the US to attend the interview, get the immigrant visa, and come back to the US, without needing to worry about any waivers.

2. Continue to wait in the US until your husband becomes a US citizen. As soon as he takes the oath, you can file I-485 for Adjustment of Status (either at the same time as I-130 or after the I-130 was previously filed), since you will then be in the Immediate Relative category. Depending on how long your husband is away from qualifying for naturalization, and based on the fact that the naturalization process often takes a year or more, this may mean waiting for years in the US while out of status.

[UndocHelp]

Thank you so much. I heard about the ban and having to apply at the consulate in my home country and those are issues I don't want.

[newacct]

Thank you so much. I heard about the ban and having to apply at the consulate in my home country and those are issues I don't want.

Like I said, if you have D/S on your I-94, you almost certainly don't have any unlawful presence, and thus won't trigger a ban upon leaving.