I'm expecting to get my citizenship this April, and right away I was planning to apply for adjustment of status for my wife who over stayed her student visa while waiting for my USC to be able to adjust. So after my citizenship we have to wait for another 15 month for the I-485 processing time.
We must travel overseas now for international assignment with my company , and I understand that will trigger the 10 year. Now the question can we apply for I-601 inadmissibility waiver before we leave or this application has to be filed after the bar kicks in.

Does your wife's I-94 say "D/S" on it?

If she leaves the country without approved Advanced Parole (form I-131) her adjustment will be considered abandoned and she will become inadmissible for 10 years. Even with the AP there's a risk that she won't be admitted back due to her visa overstay. I-601 can not be filed until an alien is found inadmissible. This usually happens during consular processing at the interview. While still in the U.S. she's considered deportable, not inadmissible yet. If she won't be admitted in the U.S. you'd have to first file form I-824 to request the CIS to forward your approved I-130 to the NVC and then to the embassy/consulate. It'll take some time to get an interview at which she'll be found inadmissible and then file I-601 waiver. Safest way is to stay in the U.S. if possible until obtaining a 2yr green card.

Cheers.

sphyrapicus3
Yes her I-94 say "D/S" on it. if it makes a difference

Dear Folks!
My husband was admitted as a student and he had a "D/S" on his I-94.What does "D/S" stand for?

Sub;
Thanks for the help and explanation.
How does the officer at the consulate find out about the visa overstaying, do they usually have a record of that ?
Also can I file form I-824 to request the CIS to forward the approved I-130 to the NVC and then to the embassy/consulate now before I leave or this has to be done after a person is found inadmissible.

Thanks

I.Roy
D/S means during study i.e. the I-94 is valid while the person is taking classes

An overstay on a student visa where the alien has D/S on the I-94 does not accrue unlawful presence until an immigration judge or immigration official makes the determination.

So, if no determination has been made in the case of the OP, then no unlawful presence has accrued up until this point. Making any talk about waivers moot.

If, for any reason, you need to file the I-601, it will need to be filed AFTER the bar is put into place.

For information on the I-601 please see immigrate2us.net