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Can I file I-485 if my I-94 has already expired?

Key answer

By the community's experience you can file I-485 after the I-94 expires within a 180-day window (245(k) for employment-based categories) - people did this after tourist status and got only an RFE for the medical. Days spent waiting on another pending petition do not count toward the 180. Views on the risk differ: some lawyers say that on denial all days since the I-94 expiry count as unlawful, others that the count starts on the denial date. After an I-485 denial lawyers cited 60 days to refile; with a longer gap USCIS asked for proof of status. Verify with a lawyer.

Community answers

The answers below are translated from the original Russian - the language of the community chats.

  • I'm passing on the lawyer's words: my tourist status under I-94 ended in March, I filed for EB-1A and for a green card through adjustment of status. If there is a denial, all days from the end of I-94 will be considered illegal. We took advantage of the 180 days to apply for an immigration visa.

  • I don't understand why USCIS is willing to forgive up to 180 illegal days, but filing I-485 somewhat freezes the illegal days. At the same time, retroactively they still count illegal days for a person if denied. It's strange.

  • What my attorney told me: after a denial on I-485, there are 60 days to file a new one. I had that situation, I filed, and there was no other status. An RFE came only for medical records; they didn't ask about status. I know a girl who filed a new I-485 150 days after her denial - in her RFE, they asked for proof that she had some status. It seems you can only file to change status if you are in a legal status, but I think you should still try - in the worst case, you will go to the consulate for a visa. This is not legal advice.

  • During the processing of I-485, we are here legally, but without status. If there is a denial on I-485, illegal stay is counted from the date of denial, not from the filing date. But the filing of I-485 itself must be done in status - B-2, F-1, and so on; applying out of status is grounds for denial.

  • Waiting for a decision on another petition does not count towards these 180 days. Even if they deny that petition, they will already have pending I-485 - and then it doesn't matter if it's denied or approved; in case of denial, they will still be without status.

The answers are anonymized community experience from the public chats, not legal advice. Officers may decide similar cases differently.

Sources

All questions on: Green cardAll questions on: Process and timelines

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A reference page built from community experience, not legal advice. Requirements and practice change - verify on uscis.gov.

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