Possible NOID for AOS coming

[S and P 9]

At our AOS interview yesterday, we were told that there was a 95% chance that we would be getting a NOID. The reason given was that my now husband (came on a K-1 visa last june) had a previous overstay back in 2009. he overstayed 9 months and had a 3 year bar placed on him. (he's canadian) THIS was news to us.... he was denied entry once and was granted entry 3 other times AND issued a K-1 fiancee visa, nothing was ever stamped in his passport and nothing was ever given to him telling him he could not enter the US until June 2012 He was NEVER told he had a 3 year bar. He was honest with every date and length of stay and stated on the K-1 applications that he was denied entry once. So why is this a problem now??? We got married within 90 days of his K-1 , but his I-94 is now expired. Will he be out of status? the IO told us he could reapply in June 2012 when his bar expires and not to leave the US before then and if denied his EAD will be invalid. She said we could try a I-601 waiver, but showing hardship might be tough to prove and might not be worth filing. She wouldn't tell us anything more...... Can he be deported??? Why the heck did this NOT come up when applying for the 1-129F?? Need advice!!!

Edited December 13, 2011 by S and P

[Bobby+Umit 161]

Since you are applying for the AOS - it doesn't matter if his i-94 is expired - since the AOS freezes your status while awaiting adjudication.

If they NOID, your AOS is over, and he will have 30 days or so to leave the country - after that - he will have issues with overstay. Staying after the AOS is denied is putting himself in problems - I can't believe they would recommend that.

However - the charge of the ban is serious - they could take it that he misrepresented himself (not disclosing it) and that would cause even more problems than a 3 year ban (like lifetime ban).

Your in dangerous waters now - I would recommend you contact a skilled immigration lawyer for this matter. This is not a self-help case.

I would fight the NOID - and go from there.

[S and P 9]

Since you are applying for the AOS - it doesn't matter if his i-94 is expired - since the AOS freezes your status while awaiting adjudication.

If they NOID, your AOS is over, and he will have 30 days or so to leave the country - after that - he will have issues with overstay. Staying after the AOS is denied is putting himself in problems - I can't believe they would recommend that.

However - the charge of the ban is serious - they could take it that he misrepresented himself (not disclosing it) and that would cause even more problems than a 3 year ban (like lifetime ban).

Your in dangerous waters now - I would recommend you contact a skilled immigration lawyer for this matter. This is not a self-help case.

I would fight the NOID - and go from there.

He DID disclose that he had been denied entry once and that he was in the US for 15 months at one time. He listed those dates and told every person he interviewed with at every step of the K-1 process. We even had an attorney handle the K-1 process because we were worried about the length of time in the country and were told that it would be okay. Obviously they were wrong... how can we fight the NOID? can it be appealed??

Edited December 13, 2011 by S and P

[S and P 9]

does anybody know a good immigration lawyer in the Indianapolis area?? I'm scared to death here.....

[NigeriaorBust 4,087]

I would talk to Marc Ellis He is NOT in the US but he is well known in immiration law. He has a VJ account ellis-island

[beejay 123]

I believe Immigrate2us.net has a list of recommended immigration lawyers by state. It might worth checking out.

[S and P 9]

We got an email saying they have ordered production of his Green Card!!!! That means he got approved right???!!???

I think I'm still going to hold off on the celebrating until he has the card in his hands!!!!

[JimVaPhuong 4,863]

We got an email saying they have ordered production of his Green Card!!!! That means he got approved right???!!???

I think I'm still going to hold off on the celebrating until he has the card in his hands!!!!

It could still be a mistake. Wait until you receive the green card.

FWIW, the reason it came up at the AOS interview is because CBP doesn't keep records of every Canadian who enters the US. Many are simply waived through if they cross the border by land. They probably didn't have a record of his overstay, and the first person to notice that he'd declared it was the IO at the AOS interview. If they subsequently approved his green card then the IO's supervisor may have said if CBP has no record of the overstay then it didn't happen.

[S and P 9]

Email this morning from USCIS I-485 Approved!!!!!

It could still be a mistake. Wait until you receive the green card.

FWIW, the reason it came up at the AOS interview is because CBP doesn't keep records of every Canadian who enters the US. Many are simply waived through if they cross the border by land. They probably didn't have a record of his overstay, and the first person to notice that he'd declared it was the IO at the AOS interview. If they subsequently approved his green card then the IO's supervisor may have said if CBP has no record of the overstay then it didn't happen.

CBP did have a record, and he was never waived through after his overstay, he was processed through secondary the next 3 times he came into the US, it was declared on his 1-129 F petition that the USCIS approved , on his K-1 visa paperwork, talked about with his IO at the Montreal consulate for his visa interview and the CBP officer when he used his k-1 visa at POE..... that's why we were so surprised that the IO for our AOS interview made it seem like it was new information.... *shrug*.... I'm just glad it's over now!!!!

[Krikit 1,164]

Congratulations.

Interestingly enough, Canadians do not accumulate unlawful presence until there has been a hearing and a determination:

(3) Canadians who lawfully enter the U.S., but who were

not given I-94's, are treated like status violators

if they overstay or fail to maintain status. They

do not accumulate unlawful presence, and the 3 and

the 10-year bars do not apply, where neither the INS

nor the Immigration Judge has made a determination

that your client has violated her status.

Link

[S and P 9]

Congratulations.

Interestingly enough, Canadians do not accumulate unlawful presence until there has been a hearing and a determination:

(3) Canadians who lawfully enter the U.S., but who were

not given I-94's, are treated like status violators

if they overstay or fail to maintain status. They

do not accumulate unlawful presence, and the 3 and

the 10-year bars do not apply, where neither the INS

nor the Immigration Judge has made a determination

that your client has violated her status.

Link

Thanks krikit...

[jojolicious 38]

Congratulations!