Will I Be Eligible for Form I-485 Application for Adjustment of Status?

Question,

I had a H-1B visa vefore. I have accrued more than 2 months of unlawful stay in U.S., will I be eligible for Form I-485 application for adjustment of status? What are the penalties for accruing unlawful stay? 

Answer,

If you are currently in United States unlawfully, then it is unlikely you are qualify to file USCIS Form I-485 application for adjustment of status inside U.S. The Form I-485 application is for people who has valid visa or status in the United States. 

If you came to U.S. on a temporary visa, such as a tourist visa, H-1B or L1 visa, F-1 visa, J1 exchange visa, or other visa categories, you are required to either leave the U.S. before your authorized stay expires, or successfully apply for an extension of your stay. You can find the date that you are expected to leave U.S. on the I-94 card that the U.S. border official placed in your passport when you entered U.S. 

If you apply for a visa or status renewal, you should make sure to submit the renewal application, such as Form I-539 application, to U.S. Citizenship and Immigration Services (USCIS) before the date shown on your I-94 card. Once you have submitted your renewal application, you can lawfully stay in the United States while awaiting a decision.

If you become eligible for Green Card application for U.S. permanent residence while you are on a nonimmigrant visa, you are then able to submit Form I-485 application for adjustment of stats before your visa expires, and receive a Green Card. However, if your visa runs out before you submit your Form I-485 application for adjustment of status, you are considered to be in the United States unlawfully, and you may not be apply for adjustment of status inside United States.

The U.S. immigration law has created various penalties for people who stay in U.S. unlawfully, such as not ineligible to apply for a Green Card from within the United States. But you may be able to go to a U.S. consulate in your home country and complete your Green Card application process there - referred to as the "consular processing" procedure.

But there are other penalties for unlawful stay in Unoted States. If you have spent more than 180 days in the United States unlawfully, and then leave U.S.,  such as for an immigrant visa/green card interview, you will be required to spend three years outside the United States before returning. If your unlawful stay was for one year or more, than you face a ten-year bar on returning. 

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