am i out of status?

[dingdong 0]

hey every1..

i entered the states on a B1 visitor visa and on the Form I-94 it says that i should leave before the date "X/Y/2010".

while i was here i married a US citizen and i filed I-130, I-485 and I-765, and i received the receipt notices for the forms i submitted.

my question is:

is it OK to overstay beyond the date written on my I-94, since I filed form I-485, until a decision is made? or should i file for an extension?

thanks!

Edited January 4, 2010 by dingdong

[pushbrk 13,118]

hey every1..

i entered the states on a B1 visitor visa and on the Form I-94 it says that i should leave before the date "X/Y/2010".

while i was here i married a US citizen and i filed I-130, I-485 and I-765, and i received the receipt notices for the forms i submitted.

my question is:

is it OK to overstay beyond the date written on my I-94, since I filed form I-485, until a decision is made? or should i file for an extension?

thanks!

Yes, the overstay will be forgiven if the I-485 is approved.

[dingdong 0]

Yes, the overstay will be forgiven if the I-485 is approved.

thanks!

[Bobby+Umit 161]

If you filed your AOS prior to the I-94 expiring and have the NOA - your status is not in question. (your an applicant to adjust status - "freezing your status")

If you filed after your I-94 expired, you will have overstay - but as pushbrk stated - it will be forgiven. (as long as there are no other negative factors....)

(good to see you posting pushbrk )

Edited January 4, 2010 by Bobby_Umit

[dingdong 0]

If you filed your AOS prior to the I-94 expiring and have the NOA - your status is not in question. (your an applicant to adjust status - "freezing your status")

If you filed after your I-94 expired, you will have overstay - but as pushbrk stated - it will be forgiven. (as long as there are no other negative factors....)

(good to see you posting pushbrk )

Thank you too! that was a relief.. I think I'm case #1.. filed before the expiration of I-94

[lucyrich 20]

Yes, the overstay will be forgiven if the I-485 is approved.

This may be a minor pedantic terminology quibble, but there's really no overstay to forgive, whether or not the I-485 is approved, as long as it wasn't filed frivolously. From the following DoS cable:

http://www.immigrationlinks.com/news/news309.htm

SUMMARY. IN GENERAL, ALIENS WHO HAVE A PENDING APPLICATION TO ADJUST STATUS TO PERMANENT RESIDENCE UNDER INA 245 ARE CONSIDERED IN A PERIOD OF AUTHORIZED STAY FOR PURPOSES OF INA 212(A)(9)(B) ("9B"). THEREFORE, SUCH ALIENS WOULD NOT ACCRUE ANY UNLAWFUL PRESENCE FOR 9B PURPOSES DURING THE PENDENCY OF THE APPLICATION TO ADJUST STATUS.

...

IN GENERAL, ALIENS WITH PROPERLY FILED APPLICATIONS FOR ADJUSTMENT OF STATUS UNDER BOTH INA 245(A) AND 245(I) ARE CONSIDERED ALIENS PRESENT IN THE U.S. UNDER A PERIOD OF STAY AUTHORIZED BY THE ATTORNEY GENERAL. SUCH ALIENS WOULD THEREFORE NOT/NOT ACCRUE ANY UNLAWFUL PRESENCE DURING THE PENDENCY OF THE ADJUSTMENT APPLICATION. THIS RULE APPLIES EVEN IF THE ADJUSTMENT APPLICATION IS SUBSEQUENTLY ABANDONED OR DENIED.

On the other hand, in the hypothetical situation where there WAS an overstay (say, the person entered on a tourist visa with a definite expiration date on the I-94, stayed in the US five years beyond that date, and then filed for adjustment of status), then that overstay would be forgiven on approval of the Adjustment. Or more precisely, Congress didn't provide in the law for any penalty for such an overstay, since the admissibility bar for overstay under 9B only kicks in if the alien departs the US prior to obtaining lawful status.

Anyway, no worries on staying past the I-94 expiration date if you are waiting for the processing of your adjustment of status.

[Bobby+Umit 161]

This may be a minor pedantic terminology quibble, but there's really no overstay to forgive, whether or not the I-485 is approved, as long as it wasn't filed frivolously. From the following DoS cable:

http://www.immigrationlinks.com/news/news309.htm

On the other hand, in the hypothetical situation where there WAS an overstay (say, the person entered on a tourist visa with a definite expiration date on the I-94, stayed in the US five years beyond that date, and then filed for adjustment of status), then that overstay would be forgiven on approval of the Adjustment. Or more precisely, Congress didn't provide in the law for any penalty for such an overstay, since the admissibility bar for overstay under 9B only kicks in if the alien departs the US prior to obtaining lawful status.

Anyway, no worries on staying past the I-94 expiration date if you are waiting for the processing of your adjustment of status.

That's correct - (however) - in your hypothetical situation - this person would have 5 years overstay (and if they left after the AOS was denied) - they still have 5 years overstay (since it took them that long to apply for the AOS), so if they attempted to re-enter the US, they would have a ban to contend with. (from my understanding - any time after the AOS was in process, that is not added to the previous overstay).

Is that a correct read on this Rich?

[lucyrich 20]

That's correct - (however) - in your hypothetical situation - this person would have 5 years overstay (and if they left after the AOS was denied) - they still have 5 years overstay (since it took them that long to apply for the AOS), so if they attempted to re-enter the US, they would have a ban to contend with. (from my understanding - any time after the AOS was in process, that is not added to the previous overstay).

Is that a correct read on this Rich?

Yep, assuming they left the US. And they'd probably have to leave after AOS was denied, as removal proceedings would be triggered soon. In this hypothetical, with 5 years out of status time between the end of the I-94 and the beginning of AOS, the question of whether the AOS is approved or denied becomes very important to whether an overstay bar under 9B would be triggered.

Whereas if the AOS was filed before the I-94 expired, there would be no period of unlawful presence and therefore no 9B overstay bar regardless of whether the AOS was approved or not.

[dingdong 0]

wow.. you guys are experts in immigration issues!!

I was wondering, why would the AOS be denied anyways? I mean.. is there like some "common" causes of denial of AOS?

[Dakine 26]

wow.. you guys are experts in immigration issues!!

I was wondering, why would the AOS be denied anyways? I mean.. is there like some "common" causes of denial of AOS?

For 1 entering the US with intentions of marriage to a particular person.

FCould also be financial or criminal history. Even medical I imagine.

[Brother Hesekiel 2,236]

Let's keep on splitting hairs! I actually doubt that you had a "B1 visitor visa" to begin with, Ding Dong.

[Bobby+Umit 161]

wow.. you guys are experts in immigration issues!!

I was wondering, why would the AOS be denied anyways? I mean.. is there like some "common" causes of denial of AOS?

Adverse factors:

Working before legally allowed to do so in the US.

EWI

Misrepresentation

to name a few..

(Thanks for the info Rich )

[pushbrk 13,118]

For 1 entering the US with intentions of marriage to a particular person.

FCould also be financial or criminal history. Even medical I imagine.

Intent to marry is not a problem. Intent to immigrate based on the marriage is the problem. Foreigners come here, marry and go home quite often.

[dingdong 0]

I got it! thank you all!!

[dingdong 0]

Let's keep on splitting hairs! I actually doubt that you had a "B1 visitor visa" to begin with, Ding Dong.

why you "doubt" that!