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Immigration. Permanent resident's spouse. I-485 already

Immigration. Permanent resident's spouse. I-485...
Immigration. Permanent resident's spouse. I-485 already filed with USCIS based priority dates. Husband is from a ESTA EU country, arrived with visa waiver, after examination but then overstayed. He was already overstayed we married and has not left during the two years We were waiting for his priority date to become current on the Visa Bulletin. We were not aware of the I-601 waiver application or that he has to leave and reenter if he overstayed his visa. Question: how strongly USCIS enforces the leave the country and/or waiver requirements? Do we have a chance at the interview to receive his residency status or we will be denied for sure? What is the best course of action to take to avoid him leaving the country and risking his ability to return? (FYI: I cannot apply for citizenship yet as I had a DUI where advance parole is still pending...)
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Answered in 1 minute by:
12/10/2017
Guillermo Senmartin
Guillermo Senmartin, Immigration Attorney
Category: Immigration Law
Satisfied Customers: 113,838
Experience: Principal Attorney at Guillermo J. Senmartin, P.A.
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Hello! My name is***** and I am a licensed attorney with more than 15 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help. Also, please do NOT click on the Opt Out button because if you do, it would prevent me from communicating with you and then it could take a long time before another expert responds to you.

Please give me a few minutes to review your question and I will be right with you with an answer. Sorry for any delay. I may have to do some research and at the same time I read and type fast, but not that fast! Thank you for your patience.

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Sorry for the delay. I just ask that if it is bad news that you not shoot the messenger. Shooting the messenger is either leaving a negative rating (usually reserved for rude or unprofessional experts) or not leaving a positive rating at all.

How long have you been a U.S. Lawful Permanent Resident?

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Customer reply replied 8 months ago
6 years

And why haven't you applied for U.S. Citizenship?

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Customer reply replied 8 months ago
Dui
Customer reply replied 8 months ago
Advance parole still pending

I see. That's a shame. You can apply for U.S. Citizenship when 5 years or more have passed since the DUI was closed including time on probation. As to your spouse, unfortunately, they are very strict and he would have to leave the U.S. to come back as a U.S. Lawful Permanent Resident. Unfortunately, the only forgiveness that existed for entering and overstaying was under INA 245(i) which states that if he had an I-130, I-140 or Labor Certification properly filed for him ON or BEFORE April 30, 2001, AND he could prove that he was inside the U.S. on December 21, 2000 unless the I-130, I-140 or Labor Certification was filed on or before January 14, 1998, and then he could pay a $1000 penalty and adjust status to U.S. Lawful Permanent Residency. If he did not have any of those types of applications filed for him before that date, then he has to try for the I-601A waiver or wait for you to become a U.S. Citizen. So you file an I-601A for him and get a pre-approval, and then with that pre-approval he can leave the U.S. for just a few days or even a day, present himself for a scheduled appointment at the U.S. Embassy or Consulate back in his home country, and then get the final approval and come back as long as there are no other reasons of inadmissibility, just having overstayed. Here is an official link:

http://www.uscis.gov/family/family-us-citizens/provisional-waiver/provisional-unlawful-presence-waivers

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! If you have no further questions (at this time) please leave a positive rating for my service. I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars or smiley faces if you see them. If you do not see any stars or smiley faces, you may have to scroll up to the top of the page or click on my name and they should come out. Also, your session does NOT close when leaving a positive rating, so you can continue to ask additional questions without additional charge. Thank you for your understanding.

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Customer reply replied 8 months ago
But they don't care about overstaying of spouses of US Citizens and theoretically the same law applies... Should we withdraw his already fiked i-485 petition?

There is a difference. Being married to a U.S. Citizen is one of the few exceptions in having to leave the U.S. The spouse of a U.S. Citizen can adjust status in the U.S. even if they are out of status. The spouse of a U.S. Lawful Permanent Resident cannot adjust status if they are out of status. This is why that spouse needs an I-601A waiver. Let me know if you need anything else, but please do not forget that positive rating. Thank you!

Guillermo Senmartin
Guillermo Senmartin, Immigration Attorney
Category: Immigration Law
Satisfied Customers: 113,838
Experience: Principal Attorney at Guillermo J. Senmartin, P.A.
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Guillermo Senmartin and 87 other Immigration Law Specialists are ready to help you
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Customer reply replied 8 months ago
Ok. Thanks.

You are very welcome. Thank you for the positive rating. If you would like to request me in the future for a different topic, please remember to put FOR GUILLERMO in the subject line and message box. Good luck to you!

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