If u re in united state u can apply for adjustment of status. Where are u presently?

The attorney said that because my wife is not a US citizen, we could not apply for the adjustment of status in the USA, she said that we would have to do a consular processing, and I am in the USA, in Massachusetts. I'm just trying to see where does it say that only US Citizen qualify for adjustment of status of their spouse

Gabriel - Aji is right. your options depends on where you're located, inside or outside the US.

I am inside the US, my wife is a greencard holder.

@Gabriel your wife can apply for you... but just remember that the processing times for LPR is way to long. But you guys don't need to go through consular. That's a lie

yeah but at the same time your out of status for married a green card holder and not forgiven.so that can be a problem.

Gabriel - your lawyer is not accurate. since you're in the US, your spouse can apply for you, as Bayano said. and Bayano is right. because your spouse is not a US citizen but a LPR, the processus is going to be extremely long. consular processing is for those outside the US.

Nina - good point. but it's not clear whether Gabriel is currently out of status. or am I missing it from the original post? 👀

That's the thing, she said that I need to get a waiver, because I'm out of status. So when time comes I would need to go to my home country and do an interview at US consulate, and then get my GC and then come back to the USA. What Im trying to understand, is why would I have to do the consular processing, if I am already in the US. But seems like the fact that she's not a US citizen, we can't adjust my status in the USA. But I looked on the i485 instructions and there is absolutely nothing saying that she can't apply for my adjustment of status.

but if you are under a Visa already you can stay.as long as you have any visa you are fine.

let me check that for you

Yes I came in with B1/B2 visa with the sole intention of traveling. But happened that I met my wife and we got married, but when we applied I was already out of my 6 months given by the officer at the airport.

Gabriel your wife is gonna apply for citizenship? when ?

She qualifies to do her citizenship in May of 2022

https://www.boundless.com/immigration-resources/guides/us-family-spouse-noncitizen-us/

Gabriel, the fact that you are outside your status is going to be problematic. your lawyer is right in this case. you need to leave the country and do the process at an embassy/consulate. the I-485 for LPR filing for spouses applies for people who are in status. you're out of status. so, you need to go do that process outside the US. Were your spouse a US citizen, it would have been different. I'm sorry.

if you are married to green card holder and you are out of status you can't adjust your status even if you are already in United States. You can do that only being married to us citizen. so it is either you wait till your spouse gets her citizenship or you go through consular process. and your lawyer is right. I-485 form doesn't say anything about it, because green card holder CAN adjust status for their spouses BUT you need to stay legally here all the time and since you are out of status this option is not for you unfortunately.

you should wait here and apply when she is doings her citizenship or come back to your cout and make the 130 .I read a case in Reddit they denied his 485 cause she was a LPR and didn't apply for citizenship yet

Tuesdays and Thursdays JIm hacking law firm do at noon YouTube live show and he's awesome you can get in there and ask him via zoom

did you speak Spanish?

Thanks everybody for your help. Since our i130 is still pending, I'm going to wait to see what would be the best option for us. She'll do her citizenship as soon as possible, but we know that it also takes a while. Yes it's a very complicated situation, but hopefully everything will be fine!

Yes I speak Portuguese Spanish and French. I'll take a look on it, thanks Nina!!

Gabriel consult with the guy I told you .you don't want a 10y o ban

Nina - waiting also means that Gabriel will be out of status for a few more years as the naturalization process takes time too, and it's not known when his spouse will become a US citizen. Gabriel, is this a risk that you want to take? If you're caught you'll be banned from the country for a certain number of years, depending on how long you've been out of status for at the time you were caught.

Lilo is wright

@Gabriel in that case, your lawyer is right. Out Of Status + married to LPR= Is not forgive. The IO only forgive OOS if married to a USC. 2 options is offer to you: - Whether you wait in June 2022 to apply or - Go back through your Consular country. I will advise you the 1st one because we almost in January and May isn't far.

Bayano - option 1 is wrong advice for the reason that I explained above. you're assuming the spouse will become a US citizen in June 2022, which is not true. that can happen in 2023 if she's lucky, and each day that Gabriel spends out of status hurts him more than it helps him.

Hi Lilo, what else do you suggest me to do? I'm waiting for my i130 to get approved, and then we are going to move forward with our waiver application. Just something else to mention, my mom is a US Citizen (she got it recently) my brother is a LPR, my step father is a US Citizen. My daughter is a US citizen and my wife will be a US citizen very soon. Unfortunately there is no other way for me rather than wait. What I do know is that my wife and daughter needs me here with them. That willI be the base for my waiver. Once again, I never came here illegally thru Mexico or anything like that, it happened that when we applied on my behalf, I was already over a couple months on my visa.

@Lilo but he said his wife will take oat in May 2022... He can then filed after that. And I don't think his status will hurt him once his wife is a USC. It will all be forgiven.

Bayano - no. he said the wife will be eligible to become a US citizen in May 2022. that is when she can apply for naturalization, form I-400. from there, it will take another while before she becomes a US citizen. 2023 if she's lucky. now if the oat ceremony is May 2022, then it's different. but I don't think so, else the lawyer would take that in consideration too. Gabriel - you don't have many easy options. your child won't sponsor you until she's 21. that's in 19 years, and the process takes forever. your mother cannot sponsor you unless you're younger than 21, and the process is lengthy too. your wife can sponsor you only after she becomes a US citizen (fastest way), which can be between 2023 and 2024. you can't tell with USCIS. the longer you stay out of status the higher the risks for you. your lawyer knows that, which is why he told you to go back to your home country and have your wife apply for you from here and you'll do your part from a consulate/embassy in your home country. it's the best solution unless you decide to never leave your house again until your wife becomes a US citizen, whenever that happens. because , believe me, if you're caught even right now, you will be banned from the US for at least 3 years, if the customs folks feel generous. you don't want to mess with immigration laws if you ever want to immigrate in the country.

@ Gabriel Lemos my case was just like yours. I came here on a B1/B2 visa got married and didn't return to my country my husband was a permanent resident when we got married. we filed the i130 it was sent to California service center it took almost 2 years for it to be approved and even when it got approved and was sent to nvc my husband was still a permanent residence . we contacted a lawyer about waiver to return to my country to attend my visa interview but he begged us not to because even if we do get the waiver approved I could still be banned from the country for 10 years because I overstay instead my husband put his citizenship in that same day it process took 8 months start to finish then we filed my i485 and i765 just got my work permit a week ago . I would say wait until your wife is eligible for naturalization just be calm and keep a low profile don't do anything that's gonna put you on the radar and everything will be just fine .

I agree 100 percent with J R after doing my own research swing low and wait until ur wife is a citizen do not return home