Filing N-400 while spouse is out of status

I

ilovethe80s

Registered Users (C)
My husband is a green card holder eligible to file for naturalization in May 2008. However I have an expired H1 status. There's a question on the N-400 form about applicant's status in the US. Should we write down "Expired H1" and will this trigger deportation proceedings? Will it also result in the denial of the N-400 application? Thank you very much!
 
Well you do need to be honest with all the forms so you would have to put down "out of status". As for any problems that's kind of a tough one. Isn't there a visa you can get while your spouse is on the GC? I would think you would qualify for something to be able to live here. As long as you're not working illegally I don't think they'd attempt to deport you, however, you never know...
 
Thank you for your response warlord!

I think I've exhausted all my options (except for leaving and waiting in my home country) - I had H1 status for 7 years (maximum of 6 years but I was able to renew for another year because my sponsoring company filed a green card petition for me, which was later on denied, appeal was denied as well). So I am not able to renew my H1 status.

I also cannot apply for student visa because that has non-immigrant intent and I obviously do because my husband's petition for me (I-130) has already been approved (as a spouse of a green card holder), but my priority date is not current so I am not able to file for I-485 at this time (adjustment of status).

I feel I'm stuck. If I leave now, the US Embassy in my country takes 2 years to process an immigrant petition for a US citizen. My husband, if all things go well, anticipate getting his citizenship in Dec 2008 (after filing in May 2008), that's a year from now, plus 2 years of processing -- equals 3 years of separation for us.

I hope someone with a similar experience is able to read this as well. All comments are appreciated.
 
Last edited by a moderator:
Answer the questions truthfully, and hope that ICE have more important people to chase after than someone who overstayed their H1. With a bit of luck, your spouse will get his USC reasonable quickly (6-9 months) and can then petition I-130/I-485 for you. At that point, the overstay would be forgiven.
 
If you have overstayed longer than 1yr, you automatically trigger a 10yr re-entry ban if you leave the country. May I strongly suggest you don't want to do that....

Best bet is stay here, hope your husband doesn't get stuck in namecheck, and therefore gets his USC quickly.
 
Thanks boatbod!

I am out of status for almost 180 days now, that's why I'm considering all options before I trigger the 3-year bar. However, as I mentioned earlier, I will be in my home country, separated from my husband, for 2 to 3 years anyway IF I DO DECIDE to fly home this week (I have a ticket ready by the way).

IF I STAY, I would be hoping that the odds are on my side, that my husband naturalization won't have any issues, or that I won't be subjected to proceedings.

I should also mention that my husband can also delay his naturalization application, remain as a permanent resident, and we wait for my priority date to be current (as a spouse of a resident). My I-130 from him is approved, my priority date is April 2004, the priority date current right now is January 2003. I am covered/grandfathered by the 245i so I am, in theory, able to adjust in the US despite prior unlawful presence, because a labor certification was filed and approved for me before April 30, 2001 (this was used for an employment-based petition for me that was later on denied).

It's just really scary being here and out of status, especially since I had always been "in-status" that last 7 years. It's quite a different feeling and my life has changed truly. I should also mention that I am no longer working at this time.

Thanks again so much for your responses!

Anyone else with a similar experience? :)
 
Ah yes, I see the problem. Leave now and face a certain 2-3 years apart, or stay here, become invisible, with the hope that ICE don't come calling before you are in a position to file for AOS in a year or so.

Best of luck whatever you decide to do.
 
I am not sure, but I don't think getting a visa number through a green card holder gives you a "forgive" for out of status. I thus think only a green card sponsorship through your husband (when he is a USC) is the only way to avoid triggering a 3 year ban. It is a tough call, and only you can make that choice of staying in the "shadows" or facing a potential separation of 3 years if he is not stuck in name check. 12 million others are in the same boat as you and congress is actively working on legalizing out of status people. You are not alone, if that is a consolation:)


ilovethe80s said:
Thanks boatbod!

I am out of status for almost 180 days now, that's why I'm considering all options before I trigger the 3-year bar. However, as I mentioned earlier, I will be in my home country, separated from my husband, for 2 to 3 years anyway IF I DO DECIDE to fly home this week (I have a ticket ready by the way).

IF I STAY, I would be hoping that the odds are on my side, that my husband naturalization won't have any issues, or that I won't be subjected to proceedings.

I should also mention that my husband can also delay his naturalization application, remain as a permanent resident, and we wait for my priority date to be current (as a spouse of a resident). My I-130 from him is approved, my priority date is April 2004, the priority date current right now is January 2003. I am covered/grandfathered by the 245i so I am, in theory, able to adjust in the US despite prior unlawful presence, because a labor certification was filed and approved for me before April 30, 2001 (this was used for an employment-based petition for me that was later on denied).

It's just really scary being here and out of status, especially since I had always been "in-status" that last 7 years. It's quite a different feeling and my life has changed truly. I should also mention that I am no longer working at this time.

Thanks again so much for your responses!

Anyone else with a similar experience? :)
Click to expand...
 
for ilovethe80s.......have you consulted a lawyer yet.....i was in similar boat in yr 2002....i had filed for GC for future employment in 1998 while i was still on a student visa...by the time my interview date came in yr 2002 i was done with school and was staying in the US without a visa for 11/2yr,but i was still a able to adjust the status under 245i with no problems....i'm not sure what has changed in the last 5yrs but check with the lawyer......

Also if a citizen applies for his spouse,being out of status does not matter at that point......i think .....coz one of my cousins did that in 2003

or try getting canadian immigration meanwhile....that way you can live in the US but cant work.....
 
Hi cma38 -- yes, I have consulted a lawyer, he said no problem. But of course, I wanted to hear some reassurance from "real-world" people who have actually experienced the same situation (and succeeded) -- thank you for your response.
 
No big deal

ilovethe80s said:
Hi cma38 -- yes, I have consulted a lawyer, he said no problem. But of course, I wanted to hear some reassurance from "real-world" people who have actually experienced the same situation (and succeeded) -- thank you for your response.
Click to expand...

boatbod is right. I agree with him. I know a friend whose wife came on a visitors visa (B1/B2). Her visa and her stay eventually expired after 6 months. She overstayed here and waited for her husband to get his citizenship. Once he got his citizenship, he applied for her adjustment of status and in 3 months, his wife had her green card. If you wrote expired H-4 when filling out your N-400 form, I don't see it as a problem, because the interview officer is going to concentrate on your application and not the wife's status. He may ask but don't see it as a big issue. Just be honest and you will be fine.
 
Atlanta Brother... can you please verify if your friend did mention in his citizenship application that he had a wife with expired B1/B2 visa. I am in exactly same situation as your friend was.

I would appreciate a reply. Thanks in advance.
 
You must log in or register to reply here.
Top