if my spouse is out of status less than 6 months, can we file now?

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if my spouse is out of status less than 6 months, can we file now?

My wife has been out of status for less than 6 months, and we only just got enough money to pay the fees for the I130 and I485 forms. Can we file now or does she need to leave the country? Do we need some sort of waiver?

Asked on December 18, 2012 under Immigration Law, Maryland

Answers:

SB, Member, California / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

As long as your wife entered the US lawfully, even if she overstayed (does not matter if it is by 1 day or 1 year or 30 years), you can file for her adjustment of status (I-130 and I-485 concurrently) without any waivers or additional penalties and she will be eligible to adjust status, assuming there are no other issues that would make her inadmissible.  However, she will not be able to travel internationally until she gets the green card, because the overstay can bar her from reentry if she departs the US before becoming a US permanent resident.

 


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