In or Out of Status? AP application and other perils

[Phiberoptic 0]

I would greatly appreciate any kind of input given to my situation.

I came to the US on an F-1 in 1998, on my last semester I got hired by a company that sponsored my H-1B. This visa was valid from February 2000 until December 2003 (December 1, 2003 was the date on my I-94).

Now in December 2000, my mother (a US resident/green card holder) applied for an AOS based on family, we got our NOA1 at the end of December of that year and has been in process ever since.

Now, my question is, am I considered "Out of Status" since my H-1B expired on December 1, 2003? But if I had left, wouldn't it had meant that I abandoned my I-130/AOS petition? I'm confused

For more references, I got married to my baby (US Citizen) on March 29, 2006 and have applied for AOS on May 5, 2006. I'm asking this because I would need an emergency AP (my father had two strokes in the past month and I haven't seen him since 2003 when he came to visit) and neither my husband or I want to either threaten our application or be denied entry IF I get an AP.

Thank you in advance and I appreciate your input.

Also, do I need my original I-94 for the interview or a copy is enough?

Any other relevant information:

Mother petition AOS filed in TSC in 2000

Husband petition AOS in VSC in 2006

Edited May 9, 2006 by Phiberoptic

[Kez/JWolf 6]

You need to find out if you have accrued any overstay... if you have then it would not be wise to use AP... you may need to have a meeting with an immigration lawyer to determin if you do have any overstay/out of status time...

You will need your I-94 for your interview if you have lost it you can get a copy by filing an I-102 you can get full info on this at the USCIS website...

Kezzie

[Phiberoptic 0]

You need to find out if you have accrued any overstay... if you have then it would not be wise to use AP... you may need to have a meeting with an immigration lawyer to determin if you do have any overstay/out of status time...

You will need your I-94 for your interview if you have lost it you can get a copy by filing an I-102 you can get full info on this at the USCIS website...

Kezzie

How can I find out if I'm out of status? I would think that from December 8, 2000 (date of NOA1 for I-130) and December 1, 2003 (I-94 expiration) is a safe time in between, no?

Thank you for your help. Do you know by any chance if how long does an I-102 take to process?

Thanks!!!

Edited May 9, 2006 by Phiberoptic

[eau_xplain 2]

As Kezzie said, you need to consult with a knowledgeable immigration lawyer. Your case is complicated enough to warrant a legal opinion.

It is important for you to determine if you have accrued any overstay after your H1B had expired (Dec. 1, 2003) even though you have a pending I-485. Any overstay of more than 6 months will result to a 3-year bar from re-entry into the US (if you leave). Any overstay of more than 1 year will result to a 10-year bar from re-entry.

Even if you are granted an AP, this will not prevent the bar from being triggered when you try to re-enter with it.

[americangirl 0]

I won't even pretend that I'll be able to answer this (I agree that you should consult a very knowledgable attorney), but I'm just curious: Your mother filed an AOS for you in December 2000, and it hasn't been approved yet? That seems...a little ridiculous (five YEARS?).

I was under the impression that once you apply for AOS, you become an AOS applicant (or whatever it's called) and you are considered to have abandoned your H1-B. I'm probably wrong, though. It seems like you have several different possible statuses (stati?) here, you may be in between them all. Good luck!

[meauxna 15]

I won't even pretend that I'll be able to answer this (I agree that you should consult a very knowledgable attorney), but I'm just curious: Your mother filed an AOS for you in December 2000, and it hasn't been approved yet? That seems...a little ridiculous (five YEARS?).

I was under the impression that once you apply for AOS, you become an AOS applicant (or whatever it's called) and you are considered to have abandoned your H1-B. I'm probably wrong, though. It seems like you have several different possible statuses (stati?) here, you may be in between them all. Good luck!

fyi,

Spouses of USCs have a special place in line: the front. Petitions filed by USCs make an immigrant visa number immediately available to the beneficiary spouse.

Other family members don't get the same golden glove treatment, and for family members of LPRs (Green Card) the wait is even longer. During that long wait, the beneficiary (the OP in this case) must maintain their own legal status in the US---the pending petition is not enough.

[americangirl 0]

Spouses of USCs have a special place in line: the front. Petitions filed by USCs make an immigrant visa number immediately available to the beneficiary spouse.

Other family members don't get the same golden glove treatment, and for family members of LPRs (Green Card) the wait is even longer. During that long wait, the beneficiary (the OP in this case) must maintain their own legal status in the US---the pending petition is not enough.

Thanks for clarifying. I knew that, somewhere...

(But FWIW, five years is just extortion. Imagine renewing your EAD five times...)

[meauxna 15]

I would greatly appreciate any kind of input given to my situation.

I came to the US on an F-1 in 1998, on my last semester I got hired by a company that sponsored my H-1B. This visa was valid from February 2000 until December 2003 (December 1, 2003 was the date on my I-94).

Now in December 2000, my mother (a US resident/green card holder) applied for an AOS based on family, we got our NOA1 at the end of December of that year and has been in process ever since.

Now, my question is, am I considered "Out of Status" since my H-1B expired on December 1, 2003? But if I had left, wouldn't it had meant that I abandoned my I-130/AOS petition? I'm confused

For more references, I got married to my baby (US Citizen) on March 29, 2006 and have applied for AOS on May 5, 2006. I'm asking this because I would need an emergency AP (my father had two strokes in the past month and I haven't seen him since 2003 when he came to visit) and neither my husband or I want to either threaten our application or be denied entry IF I get an AP.

Thank you in advance and I appreciate your input.

Also, do I need my original I-94 for the interview or a copy is enough?

Any other relevant information:

Mother petition AOS filed in TSC in 2000

Husband petition AOS in VSC in 2006

Can you clarify some things?

There is no such thing as 'petition AOS". There is a petition, and there is AOS. Two separate things. Maybe you could post what forms were filed.

Also, what is your mother's status? Is she a Permanent Resident (Green Card)? Or is she a USC?

At any rate, the safest bet for you is to consult with a lawyer who can help you sort it out. My guess is that you have been out of status since your H-1B expired and you should not leave the US under any circumstances until you get your Green Card. That's a conservative approach, but you don't present any evidence of being in status. If you filed I-485 in 2000 (that's the form for AOS) you would've heard something by now, even if to tell you you're not yet eligible.

See a lawyer; don't play games. Marriage to a USC will cure a lot of your porblems, but once you're outside the US with a 10 year ban, it's a bigger problem for your new spouse.

Spouses of USCs have a special place in line: the front. Petitions filed by USCs make an immigrant visa number immediately available to the beneficiary spouse.

Other family members don't get the same golden glove treatment, and for family members of LPRs (Green Card) the wait is even longer. During that long wait, the beneficiary (the OP in this case) must maintain their own legal status in the US---the pending petition is not enough.

Thanks for clarifying. I knew that, somewhere...

(But FWIW, five years is just extortion. Imagine renewing your EAD five times...)

No, the person isn't in a legal status for all those years and isn't entitiled to an EAD.

They're supposed to wait outside the US until a visa number is available for them, or maintain a legal status of their own in the US (H-1B, F-1 etc). The OP indicates nothingness. Actually, I wonder what she's been doing for the last 3 years?

[russ 1]

(But FWIW, five years is just extortion. Imagine renewing your EAD five times...)

It can be longer. I have friends, here since the early 90s, who are still waiting. If you're parents got green cards when they moved here, but you weren't able to, it can be very difficult.

I only waited 3 months for my Dutch residence permit (green card basically). People in Holland complained about that being too long

[kc456 0]

Most likely you've been out of status since H1-B expired (or sooner, if you stopped working for that employer sooner than I-94 expiration date). The mother probably filed I-130 (petition for alien relative), not AOS. For an adult child of the LPR, the wait is very long for the visa number to become available. 5 yrs is not out of the ordinary. A filed I-130 petition does not grant legal status at all.

In summary, I would not leave the country until you get the GC. Consult an attorney to be sure.

[Phiberoptic 0]

I won't even pretend that I'll be able to answer this (I agree that you should consult a very knowledgable attorney), but I'm just curious: Your mother filed an AOS for you in December 2000, and it hasn't been approved yet? That seems...a little ridiculous (five YEARS?).

I was under the impression that once you apply for AOS, you become an AOS applicant (or whatever it's called) and you are considered to have abandoned your H1-B. I'm probably wrong, though. It seems like you have several different possible statuses (stati?) here, you may be in between them all. Good luck!

First of all, thank you for the ones that responded with words of encouragement and in a very non-judgemental way, I appreciate the support, we all have our own particular cases and we come here asking for help one way or another.

Ok, I have not been able to get all the facts from the lawyer but this is what I know is a fact,

H1-B is dual intent, so an H-1B can maintain their status until they use their AOS benefits or the visa expires, whichever comes first.

Edited May 11, 2006 by Phiberoptic

[Phiberoptic 0]

I forgot to add this for the ones who asked:

- I-130 was presented in December 2000, someone was correct in pointing out that this was the petition filed by my Green Card Holder mother and received by USICS that same month.

- H-1B expired on December 1, 2003 time on which I stopped working.

- Met my husband on July 2003, I know I should have left the country but I had to sell my house and I didn't for a long period of time (more than 180 days after expiration date of my H-1B)

(Hard to sell a house in the middle of the winter during the dot com bust era)

- By the time I could have left the country, I was under the ban anyway. My now husband didn't want to let go and he thought it would have been harder to do. I didn't want to get married yet either because I had to know for sure that's what I wanted to do and not rush into any decisions due to other motives in play.

I'll keep you posted.

[meauxna 15]

Now, my question is, am I considered "Out of Status" since my H-1B expired on December 1, 2003? But if I had left, wouldn't it had meant that I abandoned my I-130/AOS petition? I'm confused

Phiberoptic,

Now I can answer this. No, you did not have an "AOS" to abandon at that time. You had a petition filed on your behalf that was not going to 'ripen' for a long time. It sounds very much like you have been accumulating unlawful presence (overstay) since your H-1B expired and you left your job. H-1Bs don't even get a grace period to settle their affairs, so needing to sell the house profitably is not a reason for USCIS.

I'm sorry about your dad, but I think your only option is to wait until you have a Green Card before you leave the US, if you want to get back in. If you do leave, and incur the ban, your husband will be burdened with writing a waiver application, which can be very hard and time consuming to get approved.

Wish you the best.. let us know if you learn anything new