Re-entering with a green card-please help if you know!

[Que Saudade 284]

Yes, you are right, this is a different post. However, even under overstay circumstances I 601 easily approved since no fraud was committed and overstay is relatively minor violation. Fraud is not. With current computer system CBP will easily see on the computer that GC is invalid. Done. Lifetime ban.

Not a lifetime ban, please see some of my original posts (#4 and #6) on first page. If you have evidence this is a lifetime ban, please show me so I can get that part correct.

We were in a similar situation with overstay as we did not file K1 AOS until after 180 days I-94 expired. (but less than 1 year). We were approved AP by USICS, but it doesn't matter, we can't use it even though it was approved. I researched this entire scenario backwards, forwards, and even went to InfoPass for clarification on a recent BIA case and had a lengthy conversation with USCIS employee and supervisor.

We wanted to travel back to my wife's home to see her ailing grandfather with her AP, but it does not matter. Until we have an approved green card in hand, my wife can not re-enter US should she depart the US based on overstay. We are not going to test CBP to see if they enforce it or not.

In reality and after I have read the OP's post again and again, I realize he doesn't specify how long the overstay was. If I have missed the actual time of overstay, please make note of that for me. Regardless of overstay, at this point, the bare minimum that we can conclude based on what the OP has divulged is that she had no AP. Departing the US with no AP while status is still adjusting (no approved green card) is grounds for USCIS to consider the petition abandoned. Now, after that comes the issue of how long the overstay(unlawful presence) clock was ticking prior to adjusting status. Once I-485 is filed, then the clock stops ticking, but the amount accrued stays until green card is issued, then it is forgiven.

#1-If she left the USA with No AP AND the green card was not issued. USCIS considers the petition abandoned based on departure from USA.

#2-If she has accrued under 180 days of unlawful presence prior to filing AOS, there is no ban but the issue in #1 remains.

#3-If she has accrued between 180 days and less than a year of unlawful presence, then the 3 year ban law is enforceable plus issue #1

#4-If she has accrued over one year of unlawful presence, then the 10 year ban law is enforceable plus issue #1.

BUT, all of this hinges on if she left prior to the effective date of the green card (date of issuance/approval)

CBP is the agency that has jurisdiction over enforcing the ban by not letting her re-enter.

USCIS is the agency that is over the petition abandonment.

Keep in mind that it still boils down to CBP and USCIS enforcing the law should they choose to do so.

Nothing is guaranteed here. These are just the facts based on what is in the INA. I have the link in one of my earlier posts.

This is why I termed this as Pandora's Box....

P.S. This is not a fraud case, this is a poor planning case. A few more days and none of this would be an issue.

Edited September 1, 2012 by Que Saudade

[ceadsearc 516]

I think San Diego was saying (and I could be wrong) that trying to enter on a GC she knows is dated wrong could be construed as fraud and that carries a lifetime ban.

I don't think there is much more for the OP to do but wait and see what the GC is dated.

[Que Saudade 284]

I think San Diego was saying (and I could be wrong) that trying to enter on a GC she knows is dated wrong could be construed as fraud and that carries a lifetime ban.

I don't think there is much more for the OP to do but wait and see what the GC is dated.

That makes sense in that context... I guess that boils down to how she would answer questions by the CBP.

Yes, it is a wait and see deal. An extremely unfortunate and avoidable situation....

[DC85 113]

I think she will be fine, alot of people here they always try to look about the toughest part of the law and they want to apply it to each case. if her case was approved on Monday, she is a PR since that day it doesn't matte if they issue the GC or not.

[DC85 113]

what I am sure about that when they register you as a PR, they omit all the previous overstay, and the ban issue is applied when somebody has been issued an AP and he/she has an overstay, not a GC.

Edited September 1, 2012 by myafi1985

[Que Saudade 284]

I think she will be fine, alot of people here they always try to look about the toughest part of the law and they want to apply it to each case. if her case was approved on Monday, she is a PR since that day it doesn't matte if they issue the GC or not.

Absolutely, that has been said several times.

[jasonofape 17]

what I am sure about that when they register you as a PR, they omit all the previous overstay

This is true as long as you are in the US when they approve it. Absolutely... I think that has been pointed out quite clearly.

and the ban issue is applied when somebody has been issued an AP

Or not issued AP

and he/she has an overstay, not a GC.

If the person leaves prior to the approval of the GC... The ban is triggered the moment of departure from US soil.

If the green card has been approved, then you are right with thinking that it is no problem. That is the question everyone has been saying that the OP will have to wait and see.

[Deputy Purple 1,294]

alot of people here they always try to look about the toughest part of the law and they want to apply it to each case.

There is actually a very good reason for that, it's called prepare for the worst while hoping for the best. When we do this it's not because we want to bring anyone down but rather because we want to be sure they are aware of just how bad things can get if they go in that direction.

[ceadsearc 516]

There is actually a very good reason for that, it's called prepare for the worst while hoping for the best. When we do this it's not because we want to bring anyone down but rather because we want to be sure they are aware of just how bad things can get if they go in that direction.

Amen! Imagine if everyone said "nothing bad can happen, it will definitely be fine" and OP's spouse arrives in the US and isn't admitted? Everyone is hoping things will be fine but it is best to know all possibilities so if things don't go well, OP can have a plan of action immediately and not be going "but they said this couldn't happen!"

[Que Saudade 284]

Amen! Imagine if everyone said "nothing bad can happen, it will definitely be fine" and OP's spouse arrives in the US and isn't admitted? Everyone is hoping things will be fine but it is best to know all possibilities so if things don't go well, OP can have a plan of action immediately and not be going "but they said this couldn't happen!"