Need advise about I-130

[DariaG 0]

The earliest a bar kicks in is for 180 days of unauthorised stay (after the expiration of your I-94). Provided you depart before accumulating 180 days of overstay then you receive no bar and should not need to submit an I-601 waiver.

I am not completely sure on that, so hopefully someone else can chip in. As I stated above, you should also speak to an immigration attorney, too.

Well, I tried to extend my visa and uscis process it for about 6 month, of course they denied it but I buy some time, I hoped that petition will be approved, but it didn't,

Anyway, I got my denial letter oct 9 2012. It proofs that I overstay only 4 months, right?

Thanks a lot once again!

[DariaG 0]

I'm talking about b2 visa, which I tried to extend!

Thanks

[Gary and Alla 3,694]

The earliest a bar kicks in is for 180 days of unauthorised stay (after the expiration of your I-94). Provided you depart before accumulating 180 days of overstay then you receive no bar and should not need to submit an I-601 waiver.

I am not completely sure on that, so hopefully someone else can chip in. As I stated above, you should also speak to an immigration attorney, too.

You have given her good advice, thank you. There should have been an I-485 filed with her I-130. Not sure if she could do that now. Good advice to see an attorney.

She is out of status and until she has overstayed for 180 days there is no ban.

See an attorney soon.

[Hypnos 6,576]

She cannot file an I-485 right now because as the spouse of an LPR a visa number is not immediately available to her.

[Asia 2,498]

Well, I tried to extend my visa and uscis process it for about 6 month, of course they denied it but I buy some time, I hoped that petition will be approved, but it didn't,

Anyway, I got my denial letter oct 9 2012. It proofs that I overstay only 4 months, right?

If you're denied, your illegal presence is counted from the date (of allowed staying) on your I-94.

If you're denied you're supposed to leave the US as soon as possible.

I'm sure I'll be corrected if I'm wrong.

[CHarvey80 72]

If you're denied, your illegal presence is counted from the date (of allowed staying) on your I-94.

If you're denied you're supposed to leave the US as soon as possible.

I'm sure I'll be corrected if I'm wrong.

From everything I have read upon denial of a petition you have 30 days to leave the country.

[Gary and Alla 3,694]

I'm talking about b2 visa, which I tried to extend!

Thanks

No. UNLESS your Notice of action extended your B2 visa it was not extended by requesting an extension. It expired when it expired and your overstay is calculated from the expiration of your I-94, NOT the visa itself (necessarily) The out of status condition is calculated from the expiration date of the I-94

[Gary and Alla 3,694]

If you're denied, your illegal presence is counted from the date (of allowed staying) on your I-94.

If you're denied you're supposed to leave the US as soon as possible.

I'm sure I'll be corrected if I'm wrong.

The word "illegal" gets thrown around here alot. She entered the country legally and is in an overtay "out of status" condition.

If you are not eligible for an I-485 at this time because your husband is an LPR and you HAVE incurred a ban because the overstay is calculated from the expiration of your I-94 (Technically you should have left when your I-94 expired and returned when your visa was extended) then your only option is to wait out your I-130 OR wait out your husband becoming a citizen, AND file a waiver with your visa application to waive the ban.

I suggest you see a competent immigration attorney for this one. NOT an attorney that fills out I-129Fs but someone who actually knows how to handle this. You have made some decisions that are going to make your life a bit more difficult for some time. You will have to deal with that as best you can.

Edited January 29, 2013 by Gary and Alla

[Hypnos 6,576]

Provided that an application for an extension of B-2 status was: (i) filed before the current I-94 expired, (ii) is not denied due to the applicant performing illegal work or filing a frivolous extension application, then if the application is denied illegal presence begins from the date of the denial. If it is deemed a frivolous extension request, then illegal presence begins after the expiry date on the I-94.

USCIS defines a non-frivolous extension request as "one with an arguable basis in law and fact, and not filed for an improper purpose".

If an extension request is filed after the I-94 expires and is denied for any reason whatsoever, illegal presence begins from the date that the I-94 expired.

Obviously, if an extension request is granted then there is no illegal presence to consider.

Really though, a competent attorney is the way to go here.

Edited January 29, 2013 by Hypnos

[Boggy1974 124]

One has nothing to do with the other.

The OP is here for advice, not judgement.

Thank you for saying this! We need more of folks like you with reason in the forums...

Can't help to smh hearing people judging, playing God and acting as if they're the final arbiters of immigration matters!

Edited January 30, 2013 by Boggy1974

[Boggy1974 124]

Provided that an application for an extension of B-2 status was: (i) filed before the current I-94 expired, (ii) is not denied due to the applicant performing illegal work or filing a frivolous extension application, then if the application is denied illegal presence begins from the date of the denial. If it is deemed a frivolous extension request, then illegal presence begins after the expiry date on the I-94.

USCIS defines a non-frivolous extension request as "one with an arguable basis in law and fact, and not filed for an improper purpose".

If an extension request is filed after the I-94 expires and is denied for any reason whatsoever, illegal presence begins from the date that the I-94 expired.

Obviously, if an extension request is granted then there is no illegal presence to consider.

Really though, a competent attorney is the way to go here.

Knowledgeable stuff! Had no answers for the OP, but i'm glad s/he is getting this good advice which will be of help to many.

[Gary and Alla 3,694]

Provided that an application for an extension of B-2 status was: (i) filed before the current I-94 expired, (ii) is not denied due to the applicant performing illegal work or filing a frivolous extension application, then if the application is denied illegal presence begins from the date of the denial. If it is deemed a frivolous extension request, then illegal presence begins after the expiry date on the I-94.

USCIS defines a non-frivolous extension request as "one with an arguable basis in law and fact, and not filed for an improper purpose".

If an extension request is filed after the I-94 expires and is denied for any reason whatsoever, illegal presence begins from the date that the I-94 expired.

Obviously, if an extension request is granted then there is no illegal presence to consider.

Really though, a competent attorney is the way to go here.

Thank you for that good information.

[DariaG 0]

Thanks guys, all of you is very helpful!

The thing is bothering me is WHAT DO THE USCIS THINKING.

They process cases for 1 year and of course the non immigrant visa is being expired, and not extended because you have immigration case pending!!! So by now all those people who entered legally, who paid all the fees, and didn't get approved while they are not out of status, suddently illegal, not able to go to home country avoiding ban, and not able to adjust status either.

This is not right !

[SHUSS 11]

I think your best option is to get an attorney.

[DariaG 0]

I have one ! Thanks.