Can i file i130 unlawfulpraesence but under 180 days

[faith4u]

Dear Folk: I am on student visa F1 which is stamped in my pasport with the expiration date of August 2006, and my I-94 is for duration of my studies.
In nov 2004 i went out of status and applied for reinstatment of my status which was denied and INS asked me to file a motion which i did and still waiting for that(still i am enrolled in my classes as a full time student).
My question is can i apply for labour base visa and can 245a help me.my 180 days are completeing on july 26th 2005( if my unlawful presence starts from 26th of jan on which i have received a decesion from ins for denying my appliocation for reinstatment.
My wife also has a green card and we are married since 2003 she got her green card before our marrage in 2003.but we did not filed I130 because some lawer told me that it wont be helpful for you,so wait untill she become a citizen. will in this case 245a will help me. or what are the best possibilites for me for remain in usa. and could you tell me that my visa in my pasport is still valid or no, because i am also planning to go back home in july. and can i file i130 now? because i dont know wether am i illeagal in this country or no?

Regards

 

[bb_5555]

the lawyer is right.

I would have suggested going back to your old country and get reinstated that way but since you are still in school that's not a viable option.

probably the best way to do this is to wait until your wife becomes citizen even if that means being out of status for a few years.

Once your wife becomes citizen you no longer become illegal and don't have to pay any fine. The trick is stay in school for as long as you can and don't work using the EAD you might have.

Theoretically she can apply for you now but it will take so long that you might as well wait because applying as a citizen is a lot faster.