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Deschnady

can ajuste now

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According to the instructions for the I-485 you may not be eligible to adjust based on marriage to an LPR if you are out of status. Are you still a student?

They only make an exception to being out of status for immediate relatives of USC's. Also in order to adjust status based on marriage to an LPR, you have to have a pending petition (I-130) and the PD would have to be current.

As the spouse of an LPR you can't submit the I-130 with the I-485 unless the PD's for the F2A category is current. This is because spouses of LPR's have a limited number of visas available each year whereas spouses of USC's have unlimited visas available.

You can consult an immigration attorney, but your application will most likely be denied if you submit it now so you would have to wait until your wife becomes a USC.


This does not constitute legal advice.

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Short answer: No

While your wife is an LPR you have to wait for a visa number to become available. When the visa becomes available you can file to adjust status from within the US only if you are currently in the US in a valid status. Since you admit you are out of status now that means that even if your visa became available you could not adjust. You must return home. Remember if you remain 180 days or more out of status you incur a 3 year ban from returning to the US. If you are out of status for 365 or more you incur a 10 year ban.

Overstays are forgiven only for immediate relatives of USCs. That means if she files a petition for you as a citizen or upgrades the petition for you on becoming a citizen then you could adjust status even if you have overstayed.

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