Out of Status F1 Student Married to a Greencard Holder

[ur0021]

Hello !
I am an F1 student who has been out of status for more than a year. I am married to a green card holder and she has recently applied for citizenship and her wait period is 12 months. I need some help in finding out my eligibility to file for adjustment of status or any other possible way to regain my status. Thank you!

[manhattanite]

Until your partner becomes a US citizen, you will be considered inadmissible because of your unlawful presence. I assume this will make AOS considerably more difficult, and if you decide to apply now, I think you’ll probably need to submit the I-601 waiver.

IMO it might be easier to wait for AOS until after your partner gets their citizenship.

[newacct]

Until your partner becomes a US citizen, you will be considered inadmissible because of your unlawful presence. I assume this will make AOS considerably more difficult, and if you decide to apply now, I think you’ll probably need to submit the I-601 waiver.

IMO it might be easier to wait for AOS until after your partner gets their citizenship.

OP is not inadmissible (i.e. does not have a ban) but is ineligible for AOS in the current category if out of status. If they want to immigrate before the spouse becomes a US citizen, they would need to do Consular Processing abroad which would require leaving the US. Leaving the US would trigger a ban (i.e. make them inadmissible) if the OP had accrued more than 180 days of "unlawful presence"; however, F1 students are admitted with "D/S" on their I-94s and thus generally do not accrue unlawful presence even if they stay years past the end of their program, unless and until they have either 1) applied for some benefit to USCIS and been denied for being out of status, or 2) had a final order of deportation against them in immigration court. So chances are that the OP will not trigger a ban if they leave the US to do Consular Processing, and would not need a waiver, but the OP should give more details to make sure.

Or, the OP can wait until the spouse naturalizes and do AOS from withing the US. Since they don't have a ban, they don't need a waiver.

[manhattanite]

OP is not inadmissible (i.e. does not have a ban) but is ineligible for AOS in the current category if out of status. If they want to immigrate before the spouse becomes a US citizen, they would need to do Consular Processing abroad which would require leaving the US. Leaving the US would trigger a ban (i.e. make them inadmissible) if the OP had accrued more than 180 days of "unlawful presence"; however, F1 students are admitted with "D/S" on their I-94s and thus generally do not accrue unlawful presence even if they stay years past the end of their program, unless and until they have either 1) applied for some benefit to USCIS and been denied for being out of status, or 2) had a final order of deportation against them in immigration court. So chances are that the OP will not trigger a ban if they leave the US to do Consular Processing, and would not need a waiver, but the OP should give more details to make sure.

Or, the OP can wait until the spouse naturalizes and do AOS from withing the US. Since they don't have a ban, they don't need a waiver.

https://www.uscis.gov/legal-resources/unlawful-presence-and-bars-admissibility

"Under the new policy, those in F, J, and M nonimmigrant status accrue unlawful presence as follows:

F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before Aug. 9, 2018, start accruing unlawful presence based on that failure on Aug. 9, 2018, unless they have already started accruing unlawful presence on the earliest of the following:

• The day after DHS denied the request for the immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• The day after the Form I-94, Arrival/Departure Record expired, if the F, J, or M was admitted for a date certain; or
• The day after an immigration judge ordered them excluded, deported, or removed (whether or not the decision is appealed).

An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after Aug. 9, 2018, on the earliest of any of the following:

• The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
• The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
• The day after the I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
• The day after an immigration judge orders them excluded, deported, or removed (whether or not the decision is appealed)."

[manhattanite]

I'm interpreting this policy as: Since Aug. 9, 2018, falling out of status from F, J, or M automatically counts as unlawful presence. (Roughly)

OP, when did you fall out of your F-1 status? I recommend that you (i) wait until your spouse is a US citizen; (ii) submit your AOS application after that; and (iii) stay in the US until this happens.

Worst case, maybe an immigration lawyer?

[newacct]

https://www.uscis.gov/legal-resources/unlawful-presence-and-bars-admissibility

"Under the new policy, those in F, J, and M nonimmigrant status accrue unlawful presence as follows:

F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before Aug. 9, 2018, start accruing unlawful presence based on that failure on Aug. 9, 2018, unless they have already started accruing unlawful presence on the earliest of the following:

• The day after DHS denied the request for the immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• The day after the Form I-94, Arrival/Departure Record expired, if the F, J, or M was admitted for a date certain; or
• The day after an immigration judge ordered them excluded, deported, or removed (whether or not the decision is appealed).

An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after Aug. 9, 2018, on the earliest of any of the following:

• The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
• The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
• The day after the I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
• The day after an immigration judge orders them excluded, deported, or removed (whether or not the decision is appealed)."

Read the top of that page. The unlawful presence memo has been blocked by a nationwide injunction.

[Chouness]

Hello !
I am an F1 student who has been out of status for more than a year. I am married to a green card holder and she has recently applied for citizenship and her wait period is 12 months. I need some help in finding out my eligibility to file for adjustment of status or any other possible way to regain my status. Thank you!

just wait until your spouse becomes a US citizen and then apply for your adjustment of status otherwise if you want to regain your f-1 status you can check with any school that provide I-20 and see if you are eligible to renew your status, I think you will need to pay a fine in order to get back your previous status...

[manhattanite]

Read the top of that page. The unlawful presence memo has been blocked by a nationwide injunction.

LMAOOOO sorry i missed the most important part hahaha. Ignore my prior posts please. Sorrryyy.