Grrencard process from abroad questions/ issues!

[NickStoyanov]

Hello everyone, firstly let me thank you for taking the time to read my post and hopefully help with my issue/s.
Let me get right into it. Here's where I stand.
I'm Bulgarian citizen resiting in Bangkok as of right now. I am married to a natural born US citizen ( we got married 9/14/2016) in the US. I was in the US on a J-1 ( my second J1, first one was summer 2014, second one summer 2015, no 2-year condition on either one). After my second J-1 expired ( September 20th 2015) I overstayed in the US by 363 days, I left the country September 18th 2016, knowing that if I stayed a few more days and then left I would be subjected to a 10year bar, instead of my current 3 year bar ( due to run out September 18th 2019). My wife and I got married so it would be easier for us to live together wherever we decided to go ( Thailand ,Bulgarian, EU, etc.) and of course because we love each other. Now we are considering starting my greencard application and getting familiar with all the necessery paperwork and evidence needed for the first step ( I-130, I-130A and so on). I've been in contact with a few different lawyers and each one of them has a different approach to it which makes me even more confused. The last one I contacted suggested that I MIGHT need to file form I-601 Application for Waiver of Grounds of Inadmissibility. I want to start my process now so I can get my visa by the time by bar expires ( September 2019) but keep getting more and more confused on what the actual process should look like. Unfortunately at this point I cannot afford a lawyer since their prices are **** *nomical ( starting at $7k for the process or $200 an hour, not including all the fees for paperwork) and would like to file myself. I would appreciate any help or insight that you can give me. I know this is a bit different situatuion that me an my wife are in compared to most cases, but nevertheless we are both desperate to come back to the US and set ourselves up to live there as soon as we can. If anyone could shine a light to point me in the right direction I would be more than grateful.
Thanks again for everyones time. Can't wait to see what you all have to say.

[newacct]

Hello everyone, firstly let me thank you for taking the time to read my post and hopefully help with my issue/s.
Let me get right into it. Here's where I stand.
I'm Bulgarian citizen resiting in Bangkok as of right now. I am married to a natural born US citizen ( we got married 9/14/2016) in the US. I was in the US on a J-1 ( my second J1, first one was summer 2014, second one summer 2015, no 2-year condition on either one). After my second J-1 expired ( September 20th 2015) I overstayed in the US by 363 days, I left the country September 18th 2016, knowing that if I stayed a few more days and then left I would be subjected to a 10year bar, instead of my current 3 year bar ( due to run out September 18th 2019). My wife and I got married so it would be easier for us to live together wherever we decided to go ( Thailand ,Bulgarian, EU, etc.) and of course because we love each other. Now we are considering starting my greencard application and getting familiar with all the necessery paperwork and evidence needed for the first step ( I-130, I-130A and so on). I've been in contact with a few different lawyers and each one of them has a different approach to it which makes me even more confused. The last one I contacted suggested that I MIGHT need to file form I-601 Application for Waiver of Grounds of Inadmissibility. I want to start my process now so I can get my visa by the time by bar expires ( September 2019) but keep getting more and more confused on what the actual process should look like. Unfortunately at this point I cannot afford a lawyer since their prices are **** *nomical ( starting at $7k for the process or $200 an hour, not including all the fees for paperwork) and would like to file myself. I would appreciate any help or insight that you can give me. I know this is a bit different situatuion that me an my wife are in compared to most cases, but nevertheless we are both desperate to come back to the US and set ourselves up to live there as soon as we can. If anyone could shine a light to point me in the right direction I would be more than grateful.
Thanks again for everyones time. Can't wait to see what you all have to say.

You've been given lots of incorrect information.

First of all, no matter what status you were in and how long you overstayed (no matter how many years), you are eligible to do Adjustment of Status in the US as the spouse of a US citizen, if you didn't leave the US. It's leaving the US that triggers the unlawful presence ban; if you didn't leave the US, you have no ban, no matter how much "unlawful presence" you have. And being out of status is irrelevant for your eligibility for Adjustment of Status in the Immediate Relative category (spouse, parent, or unmarried under-21 child of a US citizen).

Second, even though you stayed past the end of your program and left the US, you almost certainly still have no ban (and still wouldn't have had a ban even if you stayed past the end of your program for years and then left the US) in your case, because you were on J-1, and J-1 are most likely admitted for "D/S" on your I-94, not a date. You should check your I-94 to make sure. You only get a 3-year/10-year ban if you accrue 180 days/1 year of "unlawful presence" and then leave the US. One generally only starts accruing "unlawful presence" if one stays past the date on your I-94. If you were admitted for "D/S" on your I-94, there is no date on your I-94, and you do not automatically start accruing "unlawful presence". You can also start accruing "unlawful presence" if you made an application to USCIS and were denied with a determination that you were out of status, or if you were given a final order of removal in immigration court, but I'm assuming neither of those things happened. Starting August 9, 2018, you also accrue "unlawful presence" in F/J/M status when out of status, but you left before that.

If you have no ban, you would just do Consular Processing for an immigrant visa at any time. There's nothing to wait for, and no waiver or anything special to apply for.

[NickStoyanov]

So how am I to be sure if the ban applies to me or not?
Indeed I was admitted for "D/S" and I double checked that with the I-94 website. I have not made any applications to the USCIS and was not removed from the US, I simply booked a flight out of there.

You've been given lots of incorrect information.

First of all, no matter what status you were in and how long you overstayed (no matter how many years), you are eligible to do Adjustment of Status in the US as the spouse of a US citizen, if you didn't leave the US. It's leaving the US that triggers the unlawful presence ban; if you didn't leave the US, you have no ban, no matter how much "unlawful presence" you have. And being out of status is irrelevant for your eligibility for Adjustment of Status in the Immediate Relative category (spouse, parent, or unmarried under-21 child of a US citizen).

Second, even though you stayed past the end of your program and left the US, you almost certainly still have no ban (and still wouldn't have had a ban even if you stayed past the end of your program for years and then left the US) in your case, because you were on J-1, and J-1 are most likely admitted for "D/S" on your I-94, not a date. You should check your I-94 to make sure. You only get a 3-year/10-year ban if you accrue 180 days/1 year of "unlawful presence" and then leave the US. One generally only starts accruing "unlawful presence" if one stays past the date on your I-94. If you were admitted for "D/S" on your I-94, there is no date on your I-94, and you do not automatically start accruing "unlawful presence". You can also start accruing "unlawful presence" if you made an application to USCIS and were denied with a determination that you were out of status, or if you were given a final order of removal in immigration court, but I'm assuming neither of those things happened. Starting August 9, 2018, you also accrue "unlawful presence" in F/J/M status when out of status, but you left before that.

If you have no ban, you would just do Consular Processing for an immigrant visa at any time. There's nothing to wait for, and no waiver or anything special to apply for.

[newacct]

So how am I to be sure if the ban applies to me or not?
Indeed I was admitted for "D/S" and I double checked that with the I-94 website. I have not made any applications to the USCIS and was not removed from the US, I simply booked a flight out of there.

Okay, so like I said, from what you've described, you have no ban. To start the process for you to immigrate from outside the US, your US citizen spouse would file I-130 (and the materials needed by I-130, like I-130A, proof of US citizenship, 2 passport photos each, marriage certificate, evidence of bona fide marriage, etc.).

[NickStoyanov]

Thank you so much for the insight.
Sorry to be nosy, just want to make sure I have all the right info.
So the way I would go by this is just the straight forward application as you said I-130+I130A and so on? There would be no additions applications I would need in my situation?

Okay, so like I said, from what you've described, you have no ban. To start the process for you to immigrate from outside the US, your US citizen spouse would file I-130 (and the materials needed by I-130, like I-130A, proof of US citizenship, 2 passport photos each, marriage certificate, evidence of bona fide marriage, etc.).

[UScitizenFilingforspouse]

Thank you so much for the insight.
Sorry to be nosy, just want to make sure I have all the right info.
So the way I would go by this is just the straight forward application as you said I-130+I130A and so on? There would be no additions applications I would need in my situation?

Newacct could not have done a better job at saving you a good $7K. You can take it from here. Go through the Department of State website, read through the immigrant visas section and take it from there. Your best bet is consular processing. You are also in luck because there is a USCIS International Field office in Bangkok, Thailand. You can actually file your petition with them directly. They process I-130s in less than 1 month. So there you have it. You could not be in a better situation. Right now AOS processing times are impossible. Here is a screenshot of the Bangkok's USCIS international office's processing times.

https://egov.uscis.gov/processing-times/international-operations-office

[NickStoyanov]

So I've now done a fair share of research on my I-94 and how I was admitted. Indeed it is a D/S admittance. This is what I happened to stumble on while reading up on the I-94.
"On the passport admission stamp or the paper I-94 card, the inspector writes either a date or "D/S" (duration of status). Students and scholars on F or J status should receive a stamp marked "D/S" or "duration of status." This means that they may remain in the U.S. as long as they are properly maintaining status and their I-20 (F-1) or DS-2019 (J-1) has not expired. Students and scholars are required to keep the passport entry stamp or I-94 card for the duration of their visit. Make sure to keep it in a safe place so it doesn't get lost."
May remain in the U.S. as long as they are properly maintaining their status.. (DS-2019 does not expire). I happen to have that DS-2019 form still on me and see that item 3 (Form Covers Period) has a date on it- 5/20/2015 to 9/20/2015. Since I have been in the US past the expiration of that form, would that mean I've started to accumilate "unlawful presence" or does my D/S admition still work the same way ( no ban whatsoever)?

[scientist2016]

So I've now done a fair share of research on my I-94 and how I was admitted. Indeed it is a D/S admittance. This is what I happened to stumble on while reading up on the I-94.
"On the passport admission stamp or the paper I-94 card, the inspector writes either a date or "D/S" (duration of status). Students and scholars on F or J status should receive a stamp marked "D/S" or "duration of status." This means that they may remain in the U.S. as long as they are properly maintaining status and their I-20 (F-1) or DS-2019 (J-1) has not expired. Students and scholars are required to keep the passport entry stamp or I-94 card for the duration of their visit. Make sure to keep it in a safe place so it doesn't get lost."
May remain in the U.S. as long as they are properly maintaining their status.. (DS-2019 does not expire). I happen to have that DS-2019 form still on me and see that item 3 (Form Covers Period) has a date on it- 5/20/2015 to 9/20/2015. Since I have been in the US past the expiration of that form, would that mean I've started to accumilate "unlawful presence" or does my D/S admition still work the same way ( no ban whatsoever)?

As newacct mentioned, you will start accruing unlawful presence only if you stay past your I94 expiry date. Everything else is immaterial. Since F & J visa holders are admitted as D/S i.e., no expiry date on the I94, F & J visa holders cannot accrue unlawful presence. (BTW, as newacct mentioned, this is changing from August 9, 2018 i.e., even F & J visa holders will start accruing unlawful presence).
So to recap, you have no unlawful presence ban. Feel free to get your GC process started asap, and as has been suggested above, you are in luck, since USCIS has an intnl office in Bangkok.