Is filing AOS thru I-485 possible if my wife is currently overstaying her visa?

[HRQX 4,145]

3 minutes ago, zwrouse said:

By any chance would you know about how long it takes for the electronic version of this document to show up on one's USCIS page?

Check back tomorrow or Wednesday. @T&S_MTL filed on a Wednesday and had access to the notice the following day:

 

[Dory 8]

Just now, HRQX said:

Check back tomorrow or Wednesday. @T&S_MTL filed on a Wednesday and had access to the notice the following day:

Ok, that isn't too bad of a delay, thanks!

[Cndn 98]

2 hours ago, Cyberfx1024 said:

You can file for her without issues at all. Also if I were you I would avoid the Reddit Immigration sub

I’m glad someone said this. I’ve seen the most inaccurate advice on that sub. 

[Quarknase 1,072]

1 hour ago, zwrouse said:

Ok, that isn't too bad of a delay, thanks!

@HRQX beat me to it. I believe mine was available 48 hrs after I submitted.

[Cyberfx1024 7,978]

58 minutes ago, Cndn said:

I’m glad someone said this. I’ve seen the most inaccurate advice on that sub. 

I know right..... The rest of the time they will tell you to go see a attorney for the simplest things. But that is because many of them are attorneys or paralegals themselves. But if you try to correct them or have a different opinion than everyone else then you get banned. Also I see mainly work visas on that sub not family visas

 

They got a new Mod over there so hopefully he cleans things up some since the other mods were inactive. 

[SteveInBostonI130 3,319]

9 hours ago, zwrouse said:

• After discussing the situation with the USCIS helpline (as a hypothetical...) they said that to file for AOS you need to be in the country with a currently valid status and that she would need to leave the country in order to apply for AOS.

 

 

 

This is actually incorrect and disastrous information from the USCIS helpline.   You cannot leave the country and AOS.  Adjustment of Status allows a person to stay in the US while their immigration petition is adjudicated.  It is not valid for someone outside the US, and leaving the US while it is in process is deemed as abandoning the petition.

 

[Mollie09 1,543]

15 hours ago, Cndn said:

I’m glad someone said this. I’ve seen the most inaccurate advice on that sub. 

I got downvoted all the way for saying coming to the US on a tourist visa to marry with no intent of staying was fine. I've steered clear since.

[Cndn 98]

16 minutes ago, Mollie09 said:

I got downvoted all the way for saying coming to the US on a tourist visa to marry with no intent of staying was fine. I've steered clear since.

Don’t you love getting downvoted for providing information that can be confirmed with a quick google search? 

[geowrian 22,336]

20 hours ago, zwrouse said:

• After discussing the situation with the USCIS helpline (as a hypothetical...) they said that to file for AOS you need to be in the country with a currently valid status and that she would need to leave the country in order to apply for AOS.

19 hours ago, zwrouse said:

So I guess USCIS customer service is just wrong and/or misleading then -- that is pretty frustrating.

1) USCIS is not supposed to provide any legal advice, and they are not held accountable for any advice they do provide. As such, take anything other than pure information (i.e. you can access form x here) with a grain of salt.

2) In general, to qualify for AOS you must be in and have maintained lawful immigration status since entry. Your circumstance (IR of a USC) is an exception to the rule.

The exception tends to swallow the rule (lots and lots of IR cases), but it's still an exception to the rule.

 

20 hours ago, zwrouse said:

Numerous online resources have explained to us that it is fine to file AOS for a spouse while overstaying a valid visa. Is this the case? Has something changed?

See it for yourself: https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-8

[LINDABR 1]

22 hours ago, zwrouse said:

Info:

• I am a US citizen married to a non-citizen w/ no dependents.
• She came in legally on a student visa and has overstayed her OPT visa by ~1 month.
• I have already filed an I-130 petition online. 
• I am wanting to mail in an I-485 package ASAP.
• After discussing the situation with the USCIS helpline (as a hypothetical...) they said that to file for AOS you need to be in the country with a currently valid status and that she would need to leave the country in order to apply for AOS.

 

Numerous online resources have explained to us that it is fine to file AOS for a spouse while overstaying a valid visa. Is this the case? Has something changed?

 

Do we need to file BOTH I-130 and I-485 at the same time to do so?

 

I'd like to know with as much certainty as possible, especially since the I-485 filing fee is so massive! 

 

Thank you for any help you can give.

No problem if she is overstay once you are U.S Citizen. Go head and apply I-435 and others forms.