Legal Question in Immigration Law in Florida

I came to the US in 1999 with a tourist visa, I changed my status to H1 through a very well-known engineering company in North Miami Beach, after a couple of attempts my I130 was finally approved with a priority date of September 2008.

In December 2008 I fell out of status after having renewed my H1 visa for as long as I could and having had an F2 visa as the wife of my husband at the time who had a student visa himself. I have been undocumented ever since. In June 2013 my priority date became current as per the Visa Bulletin, therefore I proceeded to file form I485 to adjust status. On September 10 th USCIS sent me a RFE requesting evidence that I have maintained nonimmigrant status since I arrived in the US, which is impossible for me to prove since I have been undocumented since 2008 while waiting for my visa number to become current.

Question: What can I say to the immigration officer to make an exception on my case regarding the time I have not been able to maintain a legal status here? I read somewhere that

“adjustment of status will be granted where the alien is statutorily eligible and there are no "Negative Factors." When such negative factors exist, the factors will be weighed to determine whether adjustment will be granted. Close family relatives and immediate relatives in the US, may be a strong factor favoring adjustment. - See more at:

I was married until 2011 now I am divorced and I have a 7 year old American born son who goes to 1st grade in Miramar, I support my son fully on my own, I have paid my taxes every year since I have been here and my mother and father are both American citizens living here.

Please help! What can I do if anything? I just don’t want to get a deportation letter in the mail. Can I perhaps write a hardship letter explaining my situation to the officer? Will it work?

Thank you very much for your attention

Asked on 9/17/13, 4:27 pm

1 Answer from Attorneys

Marlene Hemmings Marlene Hemmings, Attorney at Law

There is unfortunately nothing you can "say" to USCIS, as the law is pretty clear. If you have been out of status since 2008, you are not eligible to adjust status in the United States & should not have applied for it in the first place.

Presumably you are over 21 yrs old, so you are not in the "immediate relative" category & thus not eligible for a "provisional waiver of inadmissibility".

Your I-485 could be denied without being referred to Immigration Court, but there is no guarantee.

You should consult with an experienced Immigration Attorney in your area, especially one who is well versed in Removal Proceedings & Unlawful Presence issues. I'm sure you can obtain a referral from your local Bar Association.

Good luck.

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Answered on 9/18/13, 1:36 pm

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