Green card holders and overstays

[Pegworth 2]

I read this post and a response from an attorney on another forum and just copied and pasted it ... is this accurate

Question:......

Okay, this may be a stupid question, but...

I understand that previous periods of "unlawful presence" (even if unintentional) can trigger a 3 or 10 year bar to reentry to the U.S. in certain situations. But I'm not clear whether past transgressions can bar reentry of a CURRENT holder of a green card.

That is, in a situation where, PRIOR to obtaining a green card through entirely non-fraudulent means as an immediate relative, the green card holder had an "unlawful presence" of more than 6 months (and possibly a little more than 1 year), would that green card holder be subject to the 3/10 year bar to readmission to the U.S. upon leaving the country for an otherwise permitted trip? Or is the 3/10 year bar only applicable to those who have not yet obtained permanent residence status?

Thanks much for any help on this!

Answer:....

The 3 / 10 year bar is not applicable to lawful permanent residents. If an individual has an approved green card and is now a lawful permanent resident s/he will not be subject to the 3 / 10 year bar for prior overstays or period of unlawful presence before s/he got the green card.

[Harsh_77 718]

To me if there was a bar to reentry before they approved the GC, then the GC should had not been approved in first place.

After approving a GC if they come back and tell that ooops you had bar and you should not get GC, could be challenged and person might end up winning the case against USCIS.

[katiemanny 64]

To me if there was a bar to reentry before they approved the GC, then the GC should had not been approved in first place.

After approving a GC if they come back and tell that ooops you had bar and you should not get GC, could be challenged and person might end up winning the case against USCIS.

The GC is USCIS property, they can terminate it at anytime. Even your USC can be taken away if found that you didn't earn it the right way.

If they found out the GC shouldn't been approved, they can cancel it at anytime.

Edited March 29, 2011 by katiemanny

[Pegworth 2]

The GC is USCIS property, they can terminate it at anytime. Even your USC can be taken away if found that you didn't earn it the right way.

If they found out the GC shouldn't been approved, they can cancel it at anytime.

So does this mean all overstays are not forgiven or does a USC marriage based green card holder start with a clean slate regarding past over stays.

[Penguin_ie 5,993]

Overstays are forgiven if they were known (ie you got a waiver).

If the now-greencard holder lied on his paperwork and didn't delcare the overstay, and it is later discovered, then the greencard can be taken away.

[Pegworth 2]

Overstays are forgiven if they were known (ie you got a waiver).

If the now-greencard holder lied on his paperwork and didn't delcare the overstay, and it is later discovered, then the greencard can be taken away.

In what paper work do you have to declare an unknown previous over stay? I guess what they are asking is are all previous over stays known and unknown forgiven to a USC marriage based green card holder once it's been issued. It's seems they never ask if you over stayed previous to the marriage forcing one to lie or tell the truth.

[katiemanny 64]

In what paper work do you have to declare an unknown previous over stay? I guess what they are asking is are all previous over stays known and unknown forgiven to a USC marriage based green card holder once it's been issued. It's seems they never ask if you over stayed previous to the marriage forcing one to lie or tell the truth.

Again previous overstays known and unknown must be declared and are forgiven to a USC marriage based AOS, if you didn't disclose an overstay and they later find out, they can terminate your GC. Never lie to USCIS will cost you big.

They do ask on the forms about previous overstays to check yes or no, and even if they didn't ask you should let them know to be on the safe side.

Lying to these guys is misrepresentation and will cost a lifetime bar from entering the US.

Edited March 29, 2011 by katiemanny

[Pegworth 2]

Again previous overstays known and unknown must be declared and are forgiven to a USC marriage based AOS, if you didn't disclose an overstay and they later find out, they can terminate your GC. Never lie to USCIS will cost you big.

They do ask on the forms about previous overstays to check yes or no, and even if they didn't ask you should let them know to be on the safe side.

Lying to these guys is misrepresentation and will cost a lifetime bar from entering the US.

They do not ask if you have a previous unknown over stay on form I-485 or ask you to declare it. I guess that's what the poster is getting at are all over stays forgiven at that point. it's interesting none the less.

[Penguin_ie 5,993]

They do not ask if you have a previous unknown over stay on form I-485 or ask you to declare it. I guess that's what the poster is getting at are all over stays forgiven at that point. it's interesting none the less.

But there are the bio forms which ask about visits to the USA, as well as residences. I suppose if the overstay was a very long time ago, it is possible it was not covered by the paperwork.

My answer remains is that if the overstay was unknown to USCIS at the time the decision to award a greencard was made, they can take the card away. Whether they do would probably depend on the individual case (ie how long the overstay was, how it was discovered, whether the greencard holder has a criminal record since becoming an LPR etc).

[Brother Hesekiel 2,236]

If we dig deeper into this subject, we need to be precise. Neither God nor the USCIS forgives anything. Overstay and working without authorization is not being made an issue of at the AOS stage, but it's not being forgiven.

If at any time something negative surfaces, the immigrant has to face the consequences. If USCIS makes a mistake and issues a 10-year instead of a 2-year Green Card, and the resident subsequently does not file for ROC, she'll be punished for it.

Someone who overstayed for 180 days or longer, then left, triggered the bar when leaving. If this fact remains undetected, the person is still inadmissible and thus the AOS was issued based on an error. It can be revoked. A bar is not discretionary; it requires an I-601 waiver, no matter how sorry the I.O. is about this.

If they find out you smoked pot when you were 18, they still can take your Green Card away when you are 65.

If they find out that you had sex with a 16-year old when you were 20, even if that's legal in your country, same thing.

If they find out you did anything wrong, they can even undo your naturalization. Happens once in a while. An immigrant is never safe.

[Dakine10 5,452]

I read this post and a response from an attorney on another forum and just copied and pasted it ... is this accurate

Question:......

Okay, this may be a stupid question, but...

I understand that previous periods of "unlawful presence" (even if unintentional) can trigger a 3 or 10 year bar to reentry to the U.S. in certain situations. But I'm not clear whether past transgressions can bar reentry of a CURRENT holder of a green card.

That is, in a situation where, PRIOR to obtaining a green card through entirely non-fraudulent means as an immediate relative, the green card holder had an "unlawful presence" of more than 6 months (and possibly a little more than 1 year), would that green card holder be subject to the 3/10 year bar to readmission to the U.S. upon leaving the country for an otherwise permitted trip? Or is the 3/10 year bar only applicable to those who have not yet obtained permanent residence status?

Thanks much for any help on this!

Answer:....

The 3 / 10 year bar is not applicable to lawful permanent residents. If an individual has an approved green card and is now a lawful permanent resident s/he will not be subject to the 3 / 10 year bar for prior overstays or period of unlawful presence before s/he got the green card.

The 3/10 year bars apply to non immigrant entry. They would not apply to someone trying to enter as a permanent resident.

That's not to say the terms of the bar no longer exist, just that they don't apply to a permanent resident. If the person in question were to give up their permanent resident status, the terms of the bar could affect future entry.

People sometimes say "an overstay is forgiven" after marriage to a USC. Technically that's not correct. The overstay is not forgiven, the associated entry ban just no longer applies to a permanent resident.

Edited March 30, 2011 by Dakine10

[bogart 3]

Having a green card or being a permanent resident is considered a "privilege" and its not a "right".

[Myopia 93]

If they find out that you had sex with a 16-year old when you were 20, even if that's legal in your country, same thing.

Really? The same thing. I doubt that. The age of consent in the UK is 16. Are you saying that every UK immigrant that had sex at that age with someone older or vice versa is deportable?

[JimVaPhuong 4,863]

Really? The same thing. I doubt that. The age of consent in the UK is 16. Are you saying that every UK immigrant that had sex at that age with someone older or vice versa is deportable?

You're correct on this one. There are some things which are specifically defined as inadmissible crimes in the INA, such as drug use, prostitution, human trafficking, acts of terrorism, etc. For these things, it does not matter whether the acts were illegal in the jurisdiction where they occurred. For acts that might be covered by the moral turpitude clause, the act must be illegal in the jurisdiction where it occurred. The determination as to whether the act involves moral turpitude is based on prevailing moral standards of the US, though.

For what it's worth, the Adjudicators Field Manual chapter on crimes of moral turpitude has been redacted in the public version, but the Foreign Affairs Manual, chapter 40.21, is very clear on this.

[pink_camaro 0]

If you are married to a U.S. citizen, you shouldn't be worrying. I have overstayed for around 5 years . when we sent our i-485 with our i-130 (approved 5 years ago, husband was an LPR then--of course it was upgraded to 'Spouse of US citizen' since he was naturalized last year), we did not get any problems. It only took roughly 5 mos from the day that we sent the forms to our interview. We had our interview last Monday , and was not asked regarding my overstay . All I'm sure is that if you have overstayed and you are married to a U.S. citizen, there shouldn't be a problem at all.