Filing I-485 while J-1 2-years HRR waiver is pending

R

Ruh

Registered Users (C)
I am married to a US citizen and I am currently in the US under the VWP. I was about to file for AOS when I found out that I am subject to the 2-years HRR. Now my lawyer told me to still file the I-485 and to either leave the question if I was ever subject blank, or to check "yes" and just add "waiver pending". I just sent out the waiver application (no objection), so it will be a couple of months before I get an answer.

I can stay on the VWP until March 15 and I really don't want to overstay. Should I file the I-485 now? Would they accept it for now, so that I can legally stay while the case is pending? Would they just ask for the waiver later or could they reject it because I didn't have the waiver at the time of filing?

Thanks so much!
 
You need to fulfill all requirements for AOS at the time of filing. Which includes having your waiver approved or completing the 2 year HRR before you file for AOS.
 
If you are using the "No Objection" method, you are allowed to submit your I-485 once you get a favorable recommendation from the State Department; you don't have to wait for the final approval notice from the USCIS. But if you don't have the DOS favorable recommendation yet, you are not eligible for I-485 filing.

Can you not just extend your stay as a tourist for another couple of months at the local immigration office? Or else go to Canada and return?
 
jk0274 said:
Can you not just extend your stay as a tourist for another couple of months at the local immigration office? Or else go to Canada and return?
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VWP doesn't allow extensions.

Going to Canada and returning may not be possible either, as they may refuse entry as a result of being married to a US citizen. And even if they don't know about the marriage, they usually don't allow reentry right after one has spent the full 90 days (or almost 90 days) in the US.
 
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