Traveling on AP, for someone who has overstayed there visa.

[felipe2121 0]

Before I state my question, I would like to thank everyone on this forum for contributing. Every single reply that one makes to someones

question makes a huge difference and is greatly appreciated.

So here is my question before someome replys the obvious, "You shouldnt Travel on a AP once you overstayed your visa beacuse you will have a 3-10 year ban" please read the question and then reply.

I went ahead and asked the USCIS if I would trigger a ban, and I was told that it would be put to the customs official. I am trying to find someone who has left the USA with a AP after they overstayed there visa, and if so what happened to them at the port of entry?

I ask this beacuse I have a family memeber who is extreamly sick and will probably pass away and I wanted to see them one last time.

Any help is greatly appreciated.

[Otto 83]

So just for the sake of curiosity. What type/length of overstay did you have previously?

[familyguy 2]

Chances are they were denied entry. Whilst I sympathise with your plight, searching for the answer you want to hear is unlikely to help you any way. Even if 34 people post they were readmitted without a problem it has no bearing whatsoever on your position. It is NOT advisable for you to leave the USA until you have a green card in your hand. Any possible ban is dependant on the length of overstay.

Edited March 30, 2010 by familyguy

[Nik+Heather 121]

Guys, we've already told him about what the policy says:

http://www.visajourney.com/forums/topic/243184-need-urgent-help-family-member-is-sick-and-i-need-to-expedite-ap

Now he's asking about anecdotal evidence of how much it is actually enforced.

Here is one third hand account. That's the only one I can remember.

http://www.visajourney.com/forums/topic/236782-thinking-of-leavingthink-again

[felipe2121 0]

So just for the sake of curiosity. What type/length of overstay did you have previously?

I have made the math and I have stayed exactly over by 178 days! what would this mean?

[felipe2121 0]

Guys, we've already told him about what the policy says:

http://www.visajourney.com/forums/topic/243184-need-urgent-help-family-member-is-sick-and-i-need-to-expedite-ap

Now he's asking about anecdotal evidence of how much it is actually enforced.

Here is one third hand account. That's the only one I can remember.

http://www.visajourney.com/forums/topic/236782-thinking-of-leavingthink-again

Keep in mind the Third hand account is for a K-1 visa holder who didnt have a AP!

[alex and astrid 38]

I have made the math and I have stayed exactly over by 178 days! what would this mean?

On what visa did you overstay on? Are you referring to a time between the I-94 expiring and you filing AOS?

[familyguy 2]

I fully understand that he was looking for anecdotal evidence and I was pointing out that it is pointless for him to do so as he can not rely on it in any way.

I have made the math and I have stayed exactly over by 178 days! what would this mean?

How do you calculate 178 days?

According to your timeline US Entry : 2009-05-03

VWP is for a Maximum of 90 days we do not know if you were given that long or not - what is the date stamped on your I 94 W?

Working on the assumption that you were given 90 days then you were out of status from 3rd August so you are as of todays date in an overstay of 239 days. That means a ban of 3 years. And in addition if there has been any unauthorized work there could also be a ban for 5 years.

Edited March 31, 2010 by familyguy

[felipe2121 0]

I fully understand that he was looking for anecdotal evidence and I was pointing out that it is pointless for him to do so as he can not rely on it in any way.

How do you calculate 178 days?

According to your timeline US Entry : 2009-05-03

VWP is for a Maximum of 90 days we do not know if you were given that long or not - what is the date stamped on your I 94 W?

Working on the assumption that you were given 90 days then you were out of status from 3rd August so you are as of todays date in an overstay of 239 days. That means a ban of 3 years. And in addition if there has been any unauthorized work there could also be a ban for 5 years.

I was given 90 days on my VWP, date for leaveing is August 3rd as stated in my I 94 W. I filed for all my paper work on January 28th. the time that I was out of status is 178 days correct?

[felipe2121 0]

On what visa did you overstay on? Are you referring to a time between the I-94 expiring and you filing AOS?

That is correct from August 3rd till January 28th. I stayed on a VWP.

[familyguy 2]

I was given 90 days on my VWP, date for leaveing is August 3rd as stated in my I 94 W. I filed for all my paper work on January 28th. the time that I was out of status is 178 days correct?

No, you are STILL out of status and an overstayer accumulating unlawful presence until your application for AOS is approved/denied. You are merely "protected" from removal until your application is determined one way or another.

[milimelo 4,541]

I am moving this topic to AOS from visitor, work and student visas as OP never had a family based visa.

[Mike B. 231]

If you want another third-hand account, then here is one: an immigration lawyer I talked to told me that she had a client who was in your situation. He got approved for AP even though he had been in the US unlawfully for a while. The lawyer advised him not to travel, and he did anyway without first telling her, figuring that he'd be let back in since he had AP. Now he's stuck down in South America with a ban on re-entrance in the US, and his family is up here. Doesn't sound like the type of position I'd want to put myself in, but this is a decision you'll have to make.

[Brother Hesekiel 2,236]

You are out of status, with an overstay on your record, until your status changes. If you leave the country, it is possible, even likely, that you trigger the ban and will be refused entry when traveling back. Is seeing your relative really more important than your immigration to the US? Only you can decide that.

[Bobby+Umit 161]

No, you are STILL out of status and an overstayer accumulating unlawful presence until your application for AOS is approved/denied. You are merely "protected" from removal until your application is determined one way or another.

That is not entirely correct.

Once you apply for the AOS and receive the (noa) you stop accumulating days "unlawful presence" (you do this if your status is "unlawful", ie, you went past the period of authorized stay) - since they accepted the application and your awaiting adjudication.

Any "unlawful presence" days prior to that still count (prior to the NOA date), and if your denied, the clock starts again till you leave. (and if over 180+ days, ban time upon re-entry to the US).

Simply applying for the AOS does not erase this "unlawful presence" - once you get the Greencard, it is not applied to you anymore, however (the unlawful presence),

This is why it's important that the applicant know their own "unlawful presence" days prior to leaving the US, even if the AP is approved (and you have the NOA from the AOS), because USCIS does not check when you request it (AP/AOS)

The bar is only triggered if you depart the US.

CBP will check when you re-enter, and if your over the days (180+) they can ban you. (3 yr ban = 180+ days (but less than 1 yr), 10 yr ban = 1 yr+) - you would need to get a waiver (if your using the AP) to get back into the US.

There are some exceptions and some harsh implications toward the adjustment application, but you would have to deal with it with your lawyer and USCIS - I would take the warning that is in the AP instructions and be very wary if I had any unlawful presence counted toward me.

This is in the AFM - but here is a nice write up of this topic (and changes to the AFM)