NOID - unlawful presence - Requesting I601 form waiver


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Here is my situation: 

Original spouse passport - 10/02/2005 - 10/01/2015
Spouse on H1B renewals (2014, 2017, 2021) 
H4 renewal - 09/07/2014 - 09/07/2017 
new Passport - 03/10/2018 - 03/09/2028 
Left Country - 04/01/2018 
Got new H-4 - 04/06/2018 
Entered in US - 04/28/2018 (I-94 on H4) 
H1 approved - 11/01/2019 - 11/01/2021 
Applied 485, EAD as dependent - 10/27/2020 
485 EAD approved - 04/28/2021 
Job change on 06/10/2021 using EAD 
Old Employer Withdrew H1 - 06/15/2021 
Spouse GC approved - 08/27/2021 
RFE for unlawful presence requesting I601 form waiver submission. 
unlawful presence from 09/07/2017 - 04/01/2018 - 206 days 

Talked to my lawyer. 
While the waiver is going to be submitted, she was suggesting to get back on H1B with current employer and prepare to leave the country to come back once with new I94. 

1. Any other suggestions? 
2. What should be part of hardship to have better chances of approval? Planning to write about family (spouse and 3 kids of ages < 8), psychological trauma, both of our career imbalances.

Here is the text from the NOID.

It appears that you are inadmissible to the United States under INA 212(a)(9)(B)(i)(1) for unlawful presence in the U.S. for 180 to 364 days and then voluntarily departing the U.S. Your record and your Form I-485 application responses confirm that you were unlawfully present in the United States between 09/07/2017 and 04/01/2018. You are not eligible to adjust status unless USCIS waives the ground of inadmissibility.

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Accruing between 180 days and 1 year of unlawful presence and then leaving the US triggers a 3-year ban (i.e. makes you inadmissible for 3 years after the departure). Since you left the US 4/1/2018, the ban would have been over on 4/1/2021. Since you filed I-485 on 10/27/2020, you were still under the ban at the time you filed, and that's why that application needs a waiver. A waiver for this ban is only possible if you can show that your US citizen or permanent resident spouse or parent would suffer "extreme hardship" if you can't be in the US. Since your spouse is now a permanent resident, it's possible for you to apply for this waiver, but "extreme hardship" is very hard to show.

A much simpler solution is just to file I-485 again now, and you wouldn't need a waiver because the ban is already over. You were in H4 status up until 8/27/2021 when your spouse became a permanent resident (and thus lost H1b status and thus you lost H4 status). Since you guys are in an employment-based category, INA 245(k) allows you to be eligible for Adjustment of Status despite being out of status as long as you haven't been out of status or working illegally for 180 days since your most recent admission (which should be satisfied in your case as it has only been a few days since 8/27/2021).

Edited by newacct
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I think I misread some of the description. It seems that you did Change of Status to H1b status and it was approved? And you got an H1b I-94 expiring 11/1/2021? You would have lost H1b status when you worked outside H1b on 6/10/2021. In any case, the period of time from 6/10/2021 to now is still less than 180 days, so INA 245(k) would still apply, and you should still be eligible to file I-485 now.

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