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I have been out of status for 5 years, is it possible to leave country and adjust status based on spouses visa

Bloomington, IL |

I initially came to the United States on an F1 visa and completed my studies. When I tried switching to an F2 visa my application was sent to the wrong office and by the time I sent it to the correct office I was out of status and application to adjust status was denied.

When we consulted the International student advisor we were advised that nothing could be done to correct the error. She even when as far to say that I will be deported if I contact immigration services. My spouse is now on an HB1 visa. If I go and apply for an H4 visa outside the country what is the possibility that my application will be accepted?

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Attorney answers 5



BEcause you had D/s duration of status because you were a student. it MAY be possible you are not accruing unlawful presence. A thorough investigation of your immigration status is in order to see if you are accruing unlawful presence which would affect you leaving the US.

Neil I Fleischer (513) 977-4209 Note: Neil Fleischer is an attorney licensed in the State of Ohio The below answer is provided for informational use only. One should not act or refrain to act solely based on the information provided. No attorney/client relationship is created unless an Agreement is signed by the attorney and the client. Best regards, Neil Neil I Fleischer The Fleischer Law Firm, LLC 917 Main Street Cincinnati, Ohio 45202-1314 Direct telephone: 513 977 4209 Enjoy our Blog at


Iny my opinion it is very risky!


I agree with Neil.

The key is to determine if you have accrued any time - unlawful presence.

You should consult with an immigration attorney immediately to determine this, so that you do not miss a window of opportunity that may be available to you.

You can do a search for a local attorney on this site and many offer free initial consultations.

Marc Taylor, Esq.


Your question is too complex and case specific for it to be answered meaningfully on Avvo.

You need to retain an experienced immigration lawyer, whether myself or one of my colleagues, to review all the facts and handle the case.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.


This is a complicated situation. I believe it is risky to go back as after completing your studies, you never got F2 status. If you had been unlawfully present in the US for over 1 yr you might be barred from re-entering the country for a period of 10 years.

What you may be able to try is to get nunc-pro-tunc adjudication for your F2 status. If that is won, you would be able to get your H4 at the consulate overseas. Aside from that being approved, you risk being stuck outside.

Dhenu Savla
SwagatUSA, LLC