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

[felipe2121 0]

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)

Thank you, for this response it is people like yourself that make a huge difference in other peoples lifes. How would I go about getting a exception? My family memeber has been diagnosed with cancer and I really want to see them before they pass away. Another question that comes to mind. Lets say I get a 3 year ban, could I apply again from my home country? What if I move my spouse overseas with me, and then do Direct Consular filings?

[Bobby+Umit 161]

Thank you, for this response it is people like yourself that make a huge difference in other peoples lifes. How would I go about getting a exception? My family memeber has been diagnosed with cancer and I really want to see them before they pass away. Another question that comes to mind. Lets say I get a 3 year ban, could I apply again from my home country? What if I move my spouse overseas with me, and then do Direct Consular filings?

Read page 18 of the link I provided. You would really need to discuss this with an immigration lawyer, skilled in AP cases (and with Unlawful presence) if you try to take this route.

If you get the ban, you would have to get a waiver to return to the US. You would do it at the embassy in your country.

Depending on the outcome, and the status of your AOS, they may require you to do a different visa entry.

I would think you would want the CR-1, not DCF if that was a choice.

Your case is even more complicated because you came here on a VWP entry. That is another level of complexity.

In a word or two - Lawyer up

[felipe2121 0]

Read page 18 of the link I provided. You would really need to discuss this with an immigration lawyer, skilled in AP cases (and with Unlawful presence) if you try to take this route.

If you get the ban, you would have to get a waiver to return to the US. You would do it at the embassy in your country.

Depending on the outcome, and the status of your AOS, they may require you to do a different visa entry.

I would think you would want the CR-1, not DCF if that was a choice.

Your case is even more complicated because you came here on a VWP entry. That is another level of complexity.

In a word or two - Lawyer up

Thank you once more for your response, if I do go the Cr-1 route, how would this work since I would have a 3 year ban but at the same time I am legally married to a US citizen? Would I get some type of specialty visa from the embassy?

[belinda63 3,039]

You spouse would file a petition for a CR-1 visa, you would go for the interview, when you were denied you would have to file a hardship waiver to overcome the ban. All in all looking at about one to two years(guesstimate) to get the visa.

[Brother Hesekiel 2,236]

Felipe,

all the answers you get about exceptions and cases where blind people all of the sudden can see do not help your specific case. For all practical purposes, if you leave the US now, you have to expect that you won't be coming back before early 2013. It's really that simple.

[felipe2121 0]

Felipe,

all the answers you get about exceptions and cases where blind people all of the sudden can see do not help your specific case. For all practical purposes, if you leave the US now, you have to expect that you won't be coming back before early 2013. It's really that simple.

Yes I agree, I am also considering moving my spouse with me to germany, if this is the case what procedure would be the fastest for allowing me to re-enter the Usa, and ultimately obtain my green card?

I cant say how much you guys are helping it is greatly,greatly appreciated!!!

[Otto 83]

Yes I agree, I am also considering moving my spouse with me to germany, if this is the case what procedure would be the fastest for allowing me to re-enter the Usa, and ultimately obtain my green card?

If you go that route - your best return-path would be what is called DCF (Direct Consular Filing). You can get a good overview of the process HERE. It allows you guys to start the process while living in Germany and once approved, you will enter the US as a Permanent Resident.

Not an easy choice and I'm sure we all feel for your dilemma - we're here to help you if we can.