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Can one remain illegally in US waiting for F2A?

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Q: What happens if my spouse just remains in the USA illegally while waiting for the F2A quota to become current?

A: If a person remains in the US in “unlawful status” for more than 180 days, and then departs voluntarily, they must remain outside the US  for three years before they may immigrate. If they are here more than 12 months in “unlawful status” the penalty is 10 years.

Most violations of nonimmigrant status render people ineligible to adjust status in the US. The principal exception to this rule involves applications and petitions that were filed before January 14, 1998. In those cases, it may be possible to pay a $1,000 fine and remain in the US to apply for immigrant status.

If a person is not eligible to adjust their status, then they must go abroad to apply for an immigrant visa at a US consular post in their home country. If they have remained in the US in “unlawful status” for more than 180 days, they will be subject to the three year (or worse) bar on return.

It is possible to apply for and receive a waiver of the three year bar. One should not count on it being granted, however.

(Note: It is not possible to acquire any days in “unlawful status” if the person is a student with a “D/S” stay authorization on their form I-94 card. A   minimum requirement for starting to count days in “unlawful status” is a definite date by which the person must leave the US.)

Q: If I receive an approval for a family-based preference petition in one category, but later get approved in a “better” category, can I keep my old priority date?

A: Yes, you can. Once a priority date is established in one family-based preference classification, it can be recovered if the same beneficiary gets ap-proved in another family -based preference classification.

Q: What happens if I am approved in one category and then something happens that automatically moves me into another?

A: In such a case, you are automatically converted from one category into another and it is not necessary to file a new petition. For example, if a lawful permanent resident files an F2A petition for his spouse, and then later becomes a US citizen, the F2A approval is automatically converted into an immediate relative petition. This is one reason why an F2A petition should always be filed, even when the petitioner expects to naturalize shortly.