Immigration Issues/hardhip waiver

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Question
My husband filed a stand alone I-130 application for me in March 2008. Notice of approval does not have a priority date yet. I assume they will send me a notice when the case gets closer to processing times.  The problem is that I am currently in unlawful status (entered legally on tourist visa but overstayed), so even if priority date becomes current I will not be able to adjust my status here unless provision 245i is extended. I am aware that for my adjustment of status to be successful my husband has to become a US citizen.
From what I researched it also possible to apply for adjustment of status along with hardship waiver. This option seems pretty risky from what I understand. At this point visa bulletin shows that visas are available for people who applied on or before Jan 2008, this is just few months away form my petition and I am assuming that my visa should be available soon.
What happens if we apply for adjustment of status with the hardship waiver and it is denied? Do they start deportation process write away? Is it possible for me to wait until my husband becomes a citizen and then reapply without having to leave the country?
Basis for hardship waiver include:
- married for 2,5 years, we have a child, house
- my husband has a business
- he hasn't lived in our native country for over 22 years
- he has significant debt that he has to pay
- his elderly mother lives here
- he is a sole provider for our family
- his education and line of work doesn't translate to job positions in his native country
- he has a vision (eye condition) that will eventually disable him, he may not be able to drive, there is no cure at this point and if in the future the cure is discovered it will most likely be in the US
Please let me know if hardship waiver is worth trying. My husband will be able to apply for citizenship in 2.5 years. I am just curious if it makes sense to try to apply this year with the waiver or wait until he is a citizen.
Thank you very much for your help.

Answer
Hi,

You cannot adjust status at this time for two reasons: your I-94 has expired, and your priority date is not yet current (in other words, there is a line of people ahead of your in the F2A category). We discuss family sponsorship categories here: www.h1b1.com/sponsor.htm

However, when your husband becomes a U.S. citizen, you will be able to adjust status based on initial legal entry to the U.S. (even if authorized stay has subsequently expired). Since the immigrant petition (I-130) has already been filed, as soon as your husband becomes a U.S. citizen you will be able to file your adjustment of status application (I-485). There is no requirement or expectation to file hardship waiver, or to rely on sec. 245(i). Indeed, there is not even a penalty fee when filing I-485 in this instance. Thus, we will not discuss hardship waiver as it does not apply to your case.

You can call our law firm at 212-268-3580 during business hours, or email info@h1b1.com

Regards,
Ajay K. Arora, Esq.
www.h1b1.com

Immigration Issues

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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