Settle an argument please!

[LaGreenEyes 0]

My husband just got his 10 year GC approved, we'd gotten the 2 year like everyone else through the AOS interview, etc. He has a cousin in Miami that entered the USA on a tourist visa about 5 years ago, stayed, got married to a PuertoRican guy there..and they did AOS about 3 years ago. She got a 10 year card immediately..so she says. How is that possible? She claims it's because she married a PuertoRican and not a "regular American" which that would have NOTHING to do with it.. ( she lives in her own little world sometimes..)

But what would the reason be if it is true? Or is she just in never never land?

[Zee Bee 61]

Its all about how long you are married when the greencard is issued.

Married less than 2 years: 2 year greencard.

Married more than 2 years: 10 year greencard.

[LaGreenEyes 0]

Thanks! They'd been married probably for 3 years or so...but she was "illegal"...

[Reba 2]

legality doesn't matter, nor does what "type" of American is the petitioner. What matters is how long the couple is married when they have their AOS interview. Married less than 2 years, you get a 2 year conditional card. Married more than 2 years, you get a 10 year card.

[Gary and Alla 3,694]

Thanks! They'd been married probably for 3 years or so...but she was "illegal"...

The determination is by how long they are married, as mentioned. "Legality" is another issue entirely. Obviously they "forgave" her illegality. The person she married has nothing to do with it.

[Bobby+Umit 161]

Thanks! They'd been married probably for 3 years or so...but she was "illegal"...

She wasn't "illegal", she was "out of status".

Big difference.

She entered the US with inspection, which is needed to AOS.

If she was illegal, as in, EWI (entered without inspection), or had more "negative factors" against her, other than the overstay, she wouldn't be allowed to AOS.

[krystiandjon 0]

Thanks! They'd been married probably for 3 years or so...but she was "illegal"...

She wasn't "illegal", she was "out of status".

Big difference.

She entered the US with inspection, which is needed to AOS.

If she was illegal, as in, EWI (entered without inspection), or had more "negative factors" against her, other than the overstay, she wouldn't be allowed to AOS.

Ummmm...if your presence in the US does not have a legal status, they are legally deportable and therefor illegally present. The severity of that is, of course, a sliding scale and you've hit that by saying she's allowed to adjust. But it's right to call her illegal.

[Bobby+Umit 161]

Thanks! They'd been married probably for 3 years or so...but she was "illegal"...

She wasn't "illegal", she was "out of status".

Big difference.

She entered the US with inspection, which is needed to AOS.

If she was illegal, as in, EWI (entered without inspection), or had more "negative factors" against her, other than the overstay, she wouldn't be allowed to AOS.

Ummmm...if your presence in the US does not have a legal status, they are legally deportable and therefor illegally present. The severity of that is, of course, a sliding scale and you've hit that by saying she's allowed to adjust. But it's right to call her illegal.

If you come here with a legal visa, and overstay, until you go before an IJ, your not "illegal", your just in an overstay status.

Yes, of course, you are subject to deportation if your in overstay, that is usually when you meet up with the IJ, and they make the determination.

This is why someone that 'overstays" is usually forgiven to AOS with an USC, whereas an "illegal" (IE EWI) cannot.

Bunch of lawyer jabber going back and forth on the subtle differences.

[krystiandjon 0]

Thanks! They'd been married probably for 3 years or so...but she was "illegal"...

She wasn't "illegal", she was "out of status".

Big difference.

She entered the US with inspection, which is needed to AOS.

If she was illegal, as in, EWI (entered without inspection), or had more "negative factors" against her, other than the overstay, she wouldn't be allowed to AOS.

Ummmm...if your presence in the US does not have a legal status, they are legally deportable and therefor illegally present. The severity of that is, of course, a sliding scale and you've hit that by saying she's allowed to adjust. But it's right to call her illegal.

If you come here with a legal visa, and overstay, until you go before an IJ, your not "illegal", your just in an overstay status.

Yes, of course, you are subject to deportation if your in overstay, that is usually when you meet up with the IJ, and they make the determination.

This is why someone that 'overstays" is usually forgiven to AOS with an USC, whereas an "illegal" (IE EWI) cannot.

Bunch of lawyer jabber going back and forth on the subtle differences.

I understand that you're trying to soften the edges of an illegal presence, but calling it illegal is correct. The overstay in itself is by definition illegal.

[rebeccajo 14]

Thanks! They'd been married probably for 3 years or so...but she was "illegal"...

She wasn't "illegal", she was "out of status".

Big difference.

She entered the US with inspection, which is needed to AOS.

If she was illegal, as in, EWI (entered without inspection), or had more "negative factors" against her, other than the overstay, she wouldn't be allowed to AOS.

Ummmm...if your presence in the US does not have a legal status, they are legally deportable and therefor illegally present. The severity of that is, of course, a sliding scale and you've hit that by saying she's allowed to adjust. But it's right to call her illegal.

If you come here with a legal visa, and overstay, until you go before an IJ, your not "illegal", your just in an overstay status.

Yes, of course, you are subject to deportation if your in overstay, that is usually when you meet up with the IJ, and they make the determination.

This is why someone that 'overstays" is usually forgiven to AOS with an USC, whereas an "illegal" (IE EWI) cannot.

Bunch of lawyer jabber going back and forth on the subtle differences.

I understand that you're trying to soften the edges of an illegal presence, but calling it illegal is correct. The overstay in itself is by definition illegal.

I'm wondering why this matters?

[krystiandjon 0]

Thanks! They'd been married probably for 3 years or so...but she was "illegal"...

She wasn't "illegal", she was "out of status".

Big difference.

She entered the US with inspection, which is needed to AOS.

If she was illegal, as in, EWI (entered without inspection), or had more "negative factors" against her, other than the overstay, she wouldn't be allowed to AOS.

Ummmm...if your presence in the US does not have a legal status, they are legally deportable and therefor illegally present. The severity of that is, of course, a sliding scale and you've hit that by saying she's allowed to adjust. But it's right to call her illegal.

If you come here with a legal visa, and overstay, until you go before an IJ, your not "illegal", your just in an overstay status.

Yes, of course, you are subject to deportation if your in overstay, that is usually when you meet up with the IJ, and they make the determination.

This is why someone that 'overstays" is usually forgiven to AOS with an USC, whereas an "illegal" (IE EWI) cannot.

Bunch of lawyer jabber going back and forth on the subtle differences.

I understand that you're trying to soften the edges of an illegal presence, but calling it illegal is correct. The overstay in itself is by definition illegal.

I'm wondering why this matters?

You're right. It doesn't.

[rebeccajo 14]

Well, it does matter - it can matter very much in a court of law.

Hopefully you'll not ever find yourself on that end of things with Department of Homeland Security.

A lot of K1 petitioners and beneficiaries get themselves riled up about 'illegals'. Rightfully so to some degree - after all they (me and my husband included) played by all the 'rules'.

I do think it's interesting that most K1 players don't realize that unless they have their greencard in their hand before their I-94 expires, they are potentially accumulating out of status time.

Sort of humbling, really.

http://www.shusterman.com/ds.html

[rebeccajo 14]

If you come here with a legal visa, and overstay, until you go before an IJ, your not "illegal", your just in an overstay status.

Yes, of course, you are subject to deportation if your in overstay, that is usually when you meet up with the IJ, and they make the determination.

This is why someone that 'overstays" is usually forgiven to AOS with an USC, whereas an "illegal" (IE EWI) cannot.

Bunch of lawyer jabber going back and forth on the subtle differences.

Bobby -

You're gonna love this one. Here's why it's best to file for your AOS before your I94 expires. All K1's who don't are relying on their 'overstay' being 'forgiven' via their marriage to a USC at grant of the I551. Remember, there is no 'forgiveness' until greencard is approved. "Period of Authorized Stay" is only automatic to K1's who file before expiration of the I94. Everybody else is casting a dice (at least according to this policy memoranda).

http://www.shusterman.com/up-eos.html

4) Requirements for Period of Stay Authorized by the Attorney General with Respect to Pending Change of Status and Extension Applications.

(A) The application for change of status or for extension of stay was filed timely. To be considered timely, the application must have been filed before the previously authorized stay expired, as provided under 8 CFR 214.1 ( c )(4) and 8 CFR 248.1 ( B ).

( B ) The alien did not work without authorization before the application for change of status or extension of stay was filed or while it was pending; and

( C ) The change of status or extension application has been pending with the Service for more than 120 days after the date the I-94 expired.

Edited May 29, 2009 by rebeccajo

[rebeccajo 14]

More fun stuff about being in the US beyond the date of your I94 with an adjustment of status pending:

http://www.ilw.com/articles/2009,0120-rizzo.shtm

"In short, based on legacy INS memoranda, current USCIS policy is to consider aliens to be in a period of stay authorized by the Attorney General when they have a pending change of status or extension of stay request or when they have a pending adjustment of status application. Prior to creation of the Department of Homeland Security, this was the INS position across the board, whether it be for the purpose of determining whether someone had triggered the 3 or 10 year bar, or whether they were deportable. However, since the various immigration functions have splintered with the creation of Homeland Security, CBP and ICE no longer follow USCIS interpretations. It appears, based on recent events discussed below, that CBP and ICE have made a radical departure from USCIS on the interpretation of when an alien is in a period of stay authorized by the Attorney General, and thus when they will place an alien in removal proceedings under INA 237(a)(1)© for being present in the U.S. in violation of law.

In an August 20, 2008 AILA/ CBP liaison meeting between members of the Upstate NY Chapter of AILA and local CBP and Border Patrol agents, the following exchange took place:

It has been mentioned that CBP is interpreting overstay and unlawful presence to accrue as of the date of expiration of an I-94, EVEN when someone has filed a timely application for adjustment of status that remains pending. Apparently, CBP is arresting people and issuing NTAs. However, ICE is interpreting this issue differently and terminating the NTAs without filing with the court. Can you please clarify this issue?

CBP: ICE and CBP interpret the date of expiration of the I-94 as out-of-status and thus, subject to removal proceedings under INA 240. CBP acknowledges that under 8 CFR 274a.12(B)(20), an alien is eligible to work in the U.S. while an extension petition is pending. However, this provision only applies to work authorization. CBP takes the position that an alien in possession of an expired I-94 card is out-of-status, regardless of whether an extension petition is pending before CIS. If encountered, such aliens will be picked up by the Border Patrol and will be placed in removal proceedings.

ICE Counsel has prosecutorial discretion here. Although most (out-of-status/overstay) NTAs are filed, an individual case can be examined to determine whether prosecution will go forward by Chief Counsel's office.

Regardless, clients should be made aware of INA 212(a)(9)(B)(i)(I) and that the old INS memos are not recognized.

Based on an informal discussion with a local CBP officer in Buffalo, NY it appears that it is not only local, but national CBP policy to consider aliens who are in a period of authorized stay to be removable if they are out of status. Border Patrol officers, who are part of CBP and are responsible for patrolling the areas between ports of entry, are not given any discretion in terms of who to detain; anyone lacking proof of currently valid status is arrested and detained. It is not until an ICE attorney has a chance to review the case that discretion can be exercised to determine whether or not to issue an NTA to a detainee. Meanwhile, an alien who has an adjustment of status application or a timely filed extension or change of status request pending may be locked up in detention for days or weeks. "

[Cuchita 1]

So bottom line is .................USCIS is full of it!!