AOS from overstayed B1

[The Interpreter 0]

I have an upcoming interview of AOS based on SIV (special immigrant visa petition), the problem is that I overstayed my B1 visa when I applied for AOS. How will the immigration officer look at it??

[Operator 1,927]

Just out of curiosity how long were out of status?

[The Interpreter 0]

I was around 70 days out of status when I applied for AOS.

[Operator 1,927]

Well I know for family based AOS it seems like 180 days is kind of the tipping point. I'm not sure about the SIV program. You may just have to wait and see and don't try to leave and re-enter.

Good luck!

[Operator 1,927]

Not sure if this applies to your situation, I'm just taking a guess. http://forefugees.com/2010/09/01/iraqi-special-immigrant-visa-siv-program-a-bureaucratic-failure/

If so thanks for your service.

[The Interpreter 0]

Thanks. Yes it is the same category except I am not going through the consular processing because I am in the US.

Anyways, the AOS is pending for the past 5 months, God knows how much more after the interview, so it is also along waiting time.

[Harpa Timsah 13,258]

INA 245 describes the procedure for AOS. INA 245©(2) says that people who have overstayed their lawful stay in the US are not eligible for Adjust of Status. Here is the link http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-7406.html

That section also describes some exceptions to this rule, such as immediate relatives of US Citizens. There are also a few classes of special immigrants who are exempt from this, but from what I can see there, the SIV program does not qualify. There are other options available to you, especially since you did not overstay 180 days or more. Hopefully they can help you when you have your interview, if they cannot approve you at that time. There is also a chance that they have more discretion on this than we know. This is a very rare case and I highly doubt anyone here has any first-hand knowledge. Good luck.

[The Interpreter 0]

Before I applied AOS, I emailed the USCIS (SIV Unit) and informed them that I was out of status, they replied that I am eligible to apply for AOS.

[Harpa Timsah 13,258]

Well then, why are you asking here? I hope they are right. That code is pretty confusing and there might be more discretion for this special circumstance. Good luck to you.

[The Interpreter 0]

Because I don't know who is the person who is replying my emails, a judge? an officer? a customer service? nobody knows. Besides, its all up to the immigration officer at the time of interview, right? I may print those emails and take them with me.

Thanks for the wishes.