WARNING for AOS filers who also file for AP

[I AM NOT THAT GUY 5,715]

since you have been here many years

Some still call me a nOOb, but they don't come around here that much anymore.

[Denver422 10]

This part:

If you depart the United States after accruing certain periods of unlawful presence in the United States (

time spent in the United States illegally

) you may be barred from admission for either three years or ten years, depending on the amount of unlawful presence an individual has accrued.  Any departure from the United States may trigger this ground of inadmissibility, even if you have obtained an advance parole document.

I don't think there is any illegal time spent in the US by a K1. I think the paragraph is speaking of possibilities when someone overstays on VWP, or a student visa maybe before applying for AOS.

I'm going to agree with you. I cannot believe a K-1 would fall into banned category or denied re-entry as long as AOS,EAD,AP was filed and an approved AP was received .

[I AM NOT THAT GUY 5,715]

I'm going to agree with you. I cannot believe a K-1 would fall into banned category or denied re-entry as long as AOS,EAD,AP was filed and an approved AP was received .

If a K-1 does not get married within 90 days, they begin accruing unlawful presence once the 90 days have expired, even if they get married to the petitioning spouse. (Hence the reason an 1-130 must be filed along with the I-485).

Once AOS is filed, the applicant gains a temporary lawful status, until the aos application is adjudicated. Like I posted earlier, if your application is denied, your EAD and AP are no longer valid. That is the risk you take traveling with AP.

Edited March 6, 2013 by The Patriot

[Denver422 10]

Some still call me a nOOb, but they don't come around here that much anymore.

Well, maybe this is a question that an actual immigration officer can answer. btw, I think that the reference to the BORG was great LOL

If a K-1 does not get married within 90 days, they begin accruing unlawful presence once the 90 days have expired, even if they get married to the petitioning spouse. (Hence the reason an 1-130 must be filed along with the I-485).

Once AOS if filed, the applicant gains a temporary lawful status, until the aos application is adjudicated. Like I posted earlier, if your application is denied, your EAD and AP are no longer valid. That is the risk you take traveling with AP.

Thank you , we did get married within the 90 days

Edited March 6, 2013 by Denver422

[Hypnos 6,576]

If the person has an AP then they are free to come and go with it.

No, no, no.

http://www.ca3.uscou...rch/101176p.pdf

This is a link to a recent decision of the BIA that reaffirmed that people who have at least 180 days of overstay become inadmissible because of the three year bar that is incurred (or a ten year bar if they hit 365 days of overstay). Advance Parole does not overcome this bar; it is granted if you are eligible for it, even if such use of it would prevent you from returning.

K-1s accumulate illegal presence the same way everyone else does, after their I-94 expires. They continue to accrue illegal presence until the day that their I-485 is accepted for processing by USCIS. K-1s do not have some special power that prevents them from accumulating illegal presence, they accrue it the same as anyone else does. Anyone who is out of status is deportable and could potentially be detained by ICE.

The only caveat here are Matters of Arrabally and Yerrabally, which held that departures under AP would not trigger the three or ten year bars. However, this is not yet settled law and applies to nobody else other than the originally two petitioners. In time this may change, but for now it is the law of the land.

I do not care if you want to stay ignorant of the law, but I do not want anyone to look at your (erroneous) posts, accept them as truth and then try to do what you are advising, because they face the prospect of a lengthy ban if they do so.

I feel like I'm taking crazy pills...

Edited March 6, 2013 by Hypnos

[Hypnos 6,576]

removed

Edited March 6, 2013 by Hypnos

[Denver422 10]

No, no, no.

http://www.ca3.uscou...rch/101176p.pdf

This is a link to a recent decision of the BIA that reaffirmed that people who have at least 180 days of overstay become inadmissible because of the three year bar that is incurred (or a ten year bar if they hit 365 days of overstay). Advance Parole does not overcome this bar; it is granted if you are eligible for it even if such use of it would prevent you from returning.

K-1s accumulate illegal presence the same way everyone else does, after their I-94 expires. They continue to accrue illegal presence until the day that their I-485 is accepted for processing by USCIS. K-1s do not have some special power that prevents them from accumulating illegal presence, they accrue it the same as anyone else does. Anyone who is out of status is deportable and could potentially be detained by ICE.

The only caveat here are Matters of Arrabally and Yerrabally, which held that departures under AP would not trigger the three or ten year bars. However, this is not yet settled law and applies to nobody else other than the originally two petitioners. In time this may change, but for now it is the law of the land.

I do not care if you want to stay ignorant of the law, but I do not want anyone to look at your (erroneous) posts, accept them as truth and then try to do what you are advising, because they face the prospect of a lengthy ban if they do so.

OK , if it only applies to the 2 original petitioners or parties , I'm assuming you mean the beneficiary who recieved an approved K-1 visa is one of the aforementioned "two" then we shouldn't have a problem here.

[I AM NOT THAT GUY 5,715]

No, no, no.

http://www.ca3.uscou...rch/101176p.pdf

This is a link to a recent decision of the BIA that reaffirmed that people who have at least 180 days of overstay become inadmissible because of the three year bar that is incurred (or a ten year bar if they hit 365 days of overstay). Advance Parole does not overcome this bar; it is granted if you are eligible for it even if such use of it would prevent you from returning.

K-1s accumulate illegal presence the same way everyone else does, after their I-94 expires. They continue to accrue illegal presence until the day that their I-485 is accepted for processing by USCIS. K-1s do not have some special power that prevents them from accumulating illegal presence, they accrue it the same as anyone else does. Anyone who is out of status is deportable and could potentially be detained by ICE.

The only caveat here are Matters of Arrabally and Yerrabally, which held that departures under AP would not trigger the three or ten year bars. However, this is not yet settled law and applies to nobody else other than the originally two petitioners. In time this may change, but for now it is the law of the land.

I do not care if you want to stay ignorant of the law, but I do not want anyone to look at your (erroneous) posts, accept them as truth and then try to do what you are advising, because they face the prospect of a lengthy ban if they do so.

That makes sense. For the K-1, the question is one of when does the I-94 expire? If there is an expiration date on the I-94, then that is a solid date. However, if there is no expiration date, as was in our case, the USCIS has decided that if an I-94 has no expiration date, the I-94 expires one year after it is issued. But, we didn't press the issue, and filed for AOS promptly, if not before our 90 days expired.*

ETA: *Yep. Two weeks before the 90 days ended.

Edited March 6, 2013 by The Patriot

[Hypnos 6,576]

OK , if it only applies to the 2 original petitioners or parties , I'm assuming you mean the beneficiary who recieved an approved K-1 visa is one of the aforementioned "two" then we shouldn't have a problem here.

No, I'm talking about Arrabally and Yerrabelly; the BIA's decision about AP not triggering the bars only applies to them specifically, until USCIS issues new guidance that applies to everyone.

Edited March 6, 2013 by Hypnos

[Denver422 10]

No, I'm talking about Arrabally and Yerrabally; the BIA's decision about AP not triggering the bars only applies to them specifically, until USCIS issue new guidance that applies to everyone.

So your referring to some case law here? makes sense.

[Hypnos 6,576]

http://www.justice.gov/eoir/vll/intdec/vol25/3748.pdf

[Troll 42]

I do not care if you want to stay ignorant of the law, but I do not want anyone to look at your (erroneous) posts, accept them as truth and then try to do what you are advising, because they face the prospect of a lengthy ban if they do so.

I feel like I'm taking crazy pills...

You probably are taking crazy pills. Because you have obviously missed what I have said in my posts. For like the fifteenth time now, I would not advise someone to leave without an AP or a GC. You need to stop trying to scare people into believing they are breaking the law by not filing AOS before their I-94 expires. I know three couples that have filed after their I-94 expired and now they all have green cards without serving prison time. I don't believe in giving people wrong information so you can stop accusing me of doing so because I have not done it here. I am glad you know big words! You must be a college graduate!

Edited March 6, 2013 by Troll

[Denver422 10]

http://www.justice.gov/eoir/vll/intdec/vol25/3748.pdf hypnos,,This has NOTHING to do with a K-1 and the circumstances are COMPLETELY different ( not even in the same ballpark ) . AND YES I READ THE ENTIRE DOC. Please give me just one example where a K-1, a visa issued for the sole purpose of marrying a USC within 90 days and has done so and 180 days later (or more) files for AOS,EAD,AP and receives an approved AP then uses same AP has been denied re-entry or banned.

http://www.justice.gov/eoir/vll/intdec/vol25/3748.pdf

not the same

Edited March 6, 2013 by Denver422

[Hypnos 6,576]

You need to stop trying to scare people into believing they are breaking the law by not filing AOS before their I-94 expires. I know three couples that have filed after their I-94 expired and now they all have green cards without serving prison time. I don't believe in giving people wrong information so you can stop accusing me of doing so because I have not done it here. I am glad you know big words! You must be a college graduate!

I don't think you are fully comprehending what I am saying. Illegal presence is not a crime, per se (it's usually dealt with as a civil infraction, rather than criminal). Nobody is saying that when your I-94 expires then you become a criminal, but you do accrue what is termed "illegal presence" (this is codified in the Immigration and Nationality Act).

Edited March 6, 2013 by Hypnos

[Troll 42]

http://www.justice.gov/eoir/vll/intdec/vol25/3748.pdf hypnos,,This has NOTHING to do with a K-1 and the circumstances are COMPLETELY different ( not even in the same ballpark ) . AND YES I READ THE ENTIRE DOC. Please give me just one example where a K-1, a visa issued for the sole purpose of marrying a USC within 90 days and has done so and 180 days later (or more) files for AOS,EAD,AP and receives an approved AP then uses same AP has been denied re-entry or banned.

not the same

All he knows is what he has read. He hasn't experienced it yet. This same dude called me ignorant! I'm out. Janelle's getting pissed! Lol