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I need help on the kind of waiver that can help my situation. I came to the US in 2016 on a visitor visa and got married to a US citizen in 2017 and we filed the petition for adjustment of status in 2018. While the process is still pending i had an emergency and i had to travel out of the country without advance parole. I have overstayed my visa by over 1 year before applying for AOS. My wife and I are looking for options to get me back to the country

I will appreciate all advice.

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When you say you "overstayed your visa", do you mean you overstayed your status as given on your I-94? (US visas are solely for entry and do not have anything to do with how long you can stay.)

If it was more than 1 year from when your I-94 expired to when you filed I-485, you triggered a 10-year ban when you left the US. This is because you trigger a 10-year ban when you leave the US without Advance Parole after accruing more than 1 year of "unlawful presence". You start to accrue "unlawful presence" when you stay past the date on your I-94, and it stops accruing while your AOS (I-485) was pending.

Your AOS (I-485) is abandoned, but your I-130 petition remains processing. Since you are outside the US, you would immigrate by Consular Processing for an immigrant visa at a US consulate in your country. You should inform USCIS that when the petition is approved, you want it to be sent to NVC for Consular Processing, and not stay at USCIS for AOS. (You might have to file I-824 to do this; I'm not sure.)

Your immigrant visa will be denied since the ban is not over. You can apply for an immigrant waiver for this ban with I-601. It will require that you show that your US citizen or permanent resident spouse or parent will suffer "extreme hardship" if you can't be in the US. You have a US citizen spouse, so if you can show they will suffer "extreme hardship" if you can't be in the US, you can get the waiver, but "extreme hardship" is hard to prove.

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    Sounds like the OP might benefit from advice from an Immigration lawyer – Traveller Aug 1 at 19:54
  • Yes i overstayed my status as stated on I-94. Thank you for the comprehensive advice. – Y2k19 Aug 3 at 2:40

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