WARNING for AOS filers who also file for AP

[Denver422 10]

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).

http://www.justice.g.../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.

[Denver422 10]

I think I'll let the cat out of the bag. A K-1 visa is a NON-IMMIGRANT VISA and most of the rules apply to IMMIGRANTS. I'm out too good night all.

[Hypnos 6,576]

Please, by all means overstay by over 180 days, travel outside the US and then try to re-enter using AP, then post back and let us know how it goes.

[Denver422 10]

This is fairly common knowledge here; I've seen it brought up on these forums numerous times to avoid using AP if you have at least 180 days of overstay.

Matters of Arrabally and Yerrabelly do overrule this, but they are not yet settled law.

there are many newcomers here every day so your boastings about your knowledge of the goings on here are irrelevant.

[Denver422 10]

Please, by all means overstay by over 180 days, travel outside the US and then try to re-enter using AP, then post back and let us know how it goes.

good night

Edited March 6, 2013 by Denver422

[Hypnos 6,576]

there are many newcomers here every day so your boastings about your knowledge of the goings on here are irrelevant.

I absolutely welcome new people. I do not welcome people who think they know everything and post incorrect information, get called on posting said wrong information and then stick to it in the face of overwhelming evidence to the contrary.

Honestly, if you really want to get to the bottom of it then check out Section 212 (a)(9)(B)(i) of the Immigration and Nationality Act, which goes into exactly this issue: http://www.uscis.gov...html#0-0-0-2633

"(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e) ) prior to the commencement of proceedings under section 235(b)(1) or section 240 , and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible." (emphasis mine)

I'm sorry that I cannot put it any plainer than that. The law is right there for you (and anyone else) to see.

Good luck to you.

Edited March 6, 2013 by Hypnos

[KayDeeCee 4,893]

This topic was about using AP when you have accumulated more than 180 days of unlawful presence. No one is scaring anyone about filing for AOS in 90 days or they will be denied. Having unlawful presence/overstay is not a basis to deny their AOS. There is no deadline to file for AOS. Being eligible to file for AOS does not mean you do not accrue overstay when your I-94 expires though.

This argument seems to explode every few months or so here. This post by JimVaPhuong last year clears/sums it up nicely: http://www.visajourn...ost__p__5015440

[CaroSL 68]

Ok, so for "new people" in here (like me) who haven't even entered the US yet, the best and safest thing to do is:

To both marry and fill for AOS, EAD, and AP before the end of the 90 days. Even a bit earlier so the NOA1 is issued before the end of the 90 days. This way, there is absolutely no unlawful presence on the US territory. The benificiary can then use AP with no risk (but the one of the AOS being denied while outside of the country, for reason not linked at all to the trip), even 180 days after the I-94 expired.

Am I right?

I understand that the risk of being denied entry when using AP, even if the above conditions are not met could be very low. But why take risks when it is possible not to take any?

[Sveta & Ron 23]

first off we all need remember cbp has final word at poe if allowed to enter no matter what your status is. as to my understand should a k1 not be married and filed aos within the 90 days ice can deport anyone.

[Denver422 10]

I absolutely welcome new people. I do not welcome people who think they know everything and post incorrect information, get called on posting said wrong information and then stick to it in the face of overwhelming evidence to the contrary.

Honestly, if you really want to get to the bottom of it then check out Section 212 (a)(9)(B)(i) of the Immigration and Nationality Act, which goes into exactly this issue: http://www.uscis.gov...html#0-0-0-2633

"(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e) ) prior to the commencement of proceedings under section 235(b)(1) or section 240 , and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible." (emphasis mine)

I'm sorry that I cannot put it any plainer than that. The law is right there for you (and anyone else) to see.

Good luck to you.

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) The purpose of a K-1 is that they are being admitted is that the holder of a K-1 VISA is to marry a USC and achieve permanent residency. So in essence they are admitted LAWFULLY for permanent residence. which is what some have said here already. Thank you for providing that link to the law.

Edited March 6, 2013 by Denver422

[Harpa Timsah 13,258]

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) The purpose of a K-1 is that they are being admitted is that the holder of a K-1 VISA is to marry a USC and achieve permanent residency. So in essence they are admitted LAWFULLY for permanent residence. which is what some have said here already. Thank you for providing that link to the law.

Absolutely not. (!)

A K-1 has not been admitted for Permanent Residence. Now way no how. A K-1 is a NON immigrant visa. "Admitted for permanent residence" means entering on an immigrant visa that triggers your LPR status (which is what happens when you enter on a spousal visa). A K-1 is a non-immigrant visa, just like a student visa or a tourist visa.The difference is that the K-1 specifically allows for immigrant intent. But a K-1 person does not become a Permanent Resident until their AOS is approved.

The AP specifically says on it that if you have overstayed 180 days or more you should not use AP because you will not be able to return.

Edited March 6, 2013 by Harpa Timsah

[VanessaTony 3,567]

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!

There seems to be a bit of a misunderstanding happening here. We're not talking about someone leaving without AP and thus incurring a ban (which is a whole other issue because if someone leaves during AOS without AP their AOS process is cancelled and they won't be permitted re-entry), we're talking about someone who has overstayed, then filed AOS, EAD and AP and then leaves the country on AP prior to the GC being received. The overstay that accumulated prior to the filing of AOS still counts as overstay and results in a ban equivalent to the length of overstay they accumulated. Having AP does not overcome the overstay, only the GC approval does, which is why people SHOULD NOT leave if they have overstay, until their GC is approved (and the overstay is "forgiven").

since you have been here many years can you please tell me if ANY K-1 who has been here over 180 days and filed for AOS ,AP EAD and received an approved AP has been DENIED re-entry or even banned by using the AP to go home and visit family? NO ONE I have asked that can provide an answer.....

Yes actually there have been people denied entry. Of course not for a while on this forum because this "don't use AP if you've had overstay" has been common knowledge on here for years and we regularly advise against it.

I could do the searches for it but I don't have time right now. Feel free to do so yourself.

[I AM NOT THAT GUY 5,715]

I think I'll let the cat out of the bag. A K-1 visa is a NON-IMMIGRANT VISA and most of the rules apply to IMMIGRANTS. I'm out too good night all.

You have it backwards. Immigrant visas are issued green cards upon arrival. Non-immigrant visas are the ones the acquire overstay time, once the I-94 expires.

Edited March 6, 2013 by The Patriot

[VanessaTony 3,567]

Here's a link on the change: http://sarmientoimmigration.com/2012/08/28/travel-on-advance-parole-no-longer-a-departure-taking-out-inadmissibility-bars-to-some-applicants-with-unlawful-presence-issues/ which explains what law is involved. The K1 is just a visa. it's not a magic card that means that marriage protects your status. If that were the case no-one would need to file for AOS because their status is protected by marriage.

There is a thread on here sometime between me joining this site and now where the woman's husband was detained by ICE even though his AOS was pending. Sure he wasn't deported but he was locked in immigration detention until it was all sorted out. Basically, until you get the GC you still carry some risks, even though really after filing AOS you should be okay in the US.

[I AM NOT THAT GUY 5,715]

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) The purpose of a K-1 is that they are being admitted is that the holder of a K-1 VISA is to marry a USC and achieve permanent residency. So in essence they are admitted LAWFULLY for permanent residence. which is what some have said here already. Thank you for providing that link to the law.

The K-1 is required to adjust status to acquire permanent status. The K-1 does not confer permanent status, it only allows the visa holder to enter the US one time. Without filing for AOS and being granted a revocable AP, the visa holder would be barred from reentry, without using a valid visa.