I-485 for permanent resident's overstayed spouse's is filed without waiver

[GCPR485LA 0]

I am a permanent US resident for 7 years. Married for 3 years.  Married in the US, spouse is on overstayed visa. I-130 was approved at the end of 2015.  I had a DUI and wanted to wait 5 years before filing for citizenship to be sure that I'd get it so I am not a citizen yet. Visa Bulletin number came up and we filed the I-485. We were told that we should not be worried because UCSIS does not enforce the law if your only immigration violation is overstaying your visa.  I have been reading up on the subject after filing, got nervous and went to another attorney for consultation, who told us that it's basically 100% that our application will be denied as USCIS only forgiving overstaying for spouses of US citizens but not for spouses of permanent residents. The first attorney insist that all is good she had a few clients in the same situation and never had a problem at the interviews. I don't know who to believe or what to do... Was somebody in similar situation?  What happened in the interview?  Should I withdraw the application and not risk my spouse's  interview until I'm a US citizen? Even if I would file for citizenship today, it would not be approved timely, before the 485 interview. ..

[geowrian 22,337]

Yes, the I-485 will be denied. Overstay is only ignored in certain circumstances, and spouse of an LPR is not one of them. This overstay is a bar to AOS...it's not discretionary on the IO's part. There is an I-601 waiver option, which I believe an LPR spouse is allowed to file.

 

Even if you obtained US citizenship before the interview, she was ineligible at the time of AOS filing, which means it will be denied.

[geowrian 22,337]

18 minutes ago, geowrian said:

There is an I-601 waiver option, which I believe an LPR spouse is allowed to file.

For reference, this would be to use the approved I-130 to apply for a visa abroad....and waive the 3/10 year bar at exit (if she accrued 180+ days of unlawful presence). I don't think you can use an I-601 to waive an ineligibility for filing the I-485 itself. And I think an I-601A provisional waiver is now available for an LPR spouse as well (since they are already in the US).

Edited December 10, 2017 by geowrian