AP lawfully present Arrabally

[dimago 0]

I had valid F-1 status until September 24, 2012.

On September 7, 2012 my wife us-citizen applied for me (I-130 Immigrant petition for relative, I-485, and so on)

On September 11, 2012 I received Alien visa number and my I-485 adjustment of status was pending since then.

That is means that I was lawfully present in US for all my stay.

On November 9, 2012 I also received work permit and advance parole.

On February 2013 I traveled outside of US for 7 days.

On March 18, 2013 I had an interview at immigration office at Federal Plaza NY , where my I-130 was approved, but IO said

I-485 will be pending until court will decide on all cases with my situation.

I asked what the name of my "specific" situation so i can do some research.

She gave me piece of paper with note Arrabally on it.

The officer said that I was out of status since September 2012, so she could not give me positive answer to my I-485.

But term Matter of Arrabally relates to person who was unlawful presence in US, and then decide to travel with AP(subject to a 3(10)-year ban) which does not apply to me, because I was not unlawfully present in US even for 1 day.

I believe that my case was sent to court by mistake. How can I resolve this issue?

[Harpa Timsah 13,258]

You said you had F-1 "status." Had you dropped out of school? Either the IO is crazy (which is possible but I doubt) or you had had your F-1 status revoked by either working illegally or dropping out of school, even though your original I-94 was still valid.

So, more information about your student status please?

[newacct 688]

This doesn't make any sense, on many levels.

1) Arrabally applies to the 3-year/10-year ban due to unlawful presence. The 3-year/10-year ban only applies to people with more than 180 days of unlawful presence. You don't seem to have any period of unlawful presence.

2) Even being "out of status" does not trigger unlawful presence. Since you're F1 admitted for duration of status, the only things that can trigger unlawful presence are if an immigration judge rules you out of status (and then unlawful presence would start after the ruling), or USCIS rules your out of status when you apply for another immigration benefit (and then, again, unlawful presence would start after the ruling). You could be out of status since 2009 for all you care, and you would still not have accrued any unlawful presence for the purposes of the ban.

The IO must be crazy.

[dimago 0]

I had valid F1. I studed at college, graduated with 2-year degree. Then I applied for OPT with work permit and was granted F-1 with work permit valid until September 24 2012.

So I worked lawfully during this time in the field related my degree.

IO main point was that i traveled with AP while out of status(From September till now).

Here is our approx. dialog:

IO: What is your status now?

Me: Pending AOS.

IO: It is not a status. So u r out of status. But u traveled. This is a problem.

ME: But i was lawfully present in the US for the duration of my stay in the country.

OI: I can approve ur I-130, but I'm sending I-485 to court because of Arrabally matter. We had training recently about this matter. I do not fully understand it, but it something with traveling while pending AOS. There was a time when they simply denied such kind of applications, then there was a time when they approved them. Now they put them on hold.

This was the dialog we had. Any idea who is right in this situation?

[dimago 0]

This doesn't make any sense, on many levels.

1) Arrabally applies to the 3-year/10-year ban due to unlawful presence. The 3-year/10-year ban only applies to people with more than 180 days of unlawful presence. You don't seem to have any period of unlawful presence.

2) Even being "out of status" does not trigger unlawful presence. Since you're F1 admitted for duration of status, the only things that can trigger unlawful presence are if an immigration judge rules you out of status (and then unlawful presence would start after the ruling), or USCIS rules your out of status when you apply for another immigration benefit (and then, again, unlawful presence would start after the ruling). You could be out of status since 2009 for all you care, and you would still not have accrued any unlawful presence for the purposes of the ban.

The IO must be crazy.

What are my steps in this situation, if I think IO made a mistake?

Can I speak may be with supervisor?

Any number can i call?

I did infopass appointment for April 2 for now.

[seth2013 39]

From what you've said, it doesn't sound like you have been out of status. I think about time you contacted a lawyer, they will usually do a consultation free and then you can decide what to do.

[newacct 688]

From what you've said, it doesn't sound like you have been out of status. I think about time you contacted a lawyer, they will usually do a consultation free and then you can decide what to do.

But being out of status should still not matter.

[seth2013 39]

But if they think he was out of status and did leave the US during AOS, it would matter. So hopefully someone could help get that cleared up.

Edited March 19, 2013 by sethless

[hmh33 117]

Sounds like this is USCIS' screwup - the IO doesn't know what she is talking about. If I were you I would wait a week to see if a supervisor at that field office approves your I-485. If not, time to hire an experienced immigration attorney to help get it straightened out. If you can't afford a lawyer, another alternative would be to ask your congressman or senator's office to intervene.

[dimago 0]

Sounds like this is USCIS' screwup - the IO doesn't know what she is talking about. If I were you I would wait a week to see if a supervisor at that field office approves your I-485. If not, time to hire an experienced immigration attorney to help get it straightened out. If you can't afford a lawyer, another alternative would be to ask your congressman or senator's office to intervene.

Does supervisor checks every case?

Can i just go to the same AOS office and ask at the window to speak with supervisor?

[Harpa Timsah 13,258]

I would make infopass and speak with a supervisor. While your I-485 is pending, you are in a period of authorized stay and the overstay clock is not ticking, so if that is the reason the IO is just dead wrong. So it appears the IO messed up (unless you were not eligible for OPT with a 2-year degree or something else).

[Hypnos 6,578]

1) Lawyer up (if you didn't already).

2) Make an Infopass and bring them evidence of their wrongness.

3) Contact the DHS Ombudsman who might be able to get this straightened out.

[hmh33 117]

You could do more harm than good if you go to another infopass without either (1) a lawyer, or (2) substantial research and self-education.

[newacct 688]

But if they think he was out of status and did leave the US during AOS, it would matter. So hopefully someone could help get that cleared up.

No it doesn't. He has an AP, so he can leave and come back during AOS. The only issue would be the ban, which is based on unlawful presence. Even if he was out of status for years, he would still not have any unlawful presence, which can only be triggered in certain ways.

[Harpa Timsah 13,258]

No it doesn't. He has an AP, so he can leave and come back during AOS. The only issue would be the ban, which is based on unlawful presence. Even if he was out of status for years, he would still not have any unlawful presence, which can only be triggered in certain ways.

You are so very wrong on this.

For the reentry ban to take effect, the person would have 180 days of overstay. They cannot be out of status for years and then come back on their visa. Absolutely not. Your attempt at hair splitting misses the mark by a mile. I have seen people be denied AOS for using AP and triggering their ban.

You are also the one spouting that Arabelly changed the rules, when numerous other members have wisely pointed out that the matter is not yet settled into law. As you can see from this story, if a person tries to use AP with 180 days of overstay, then their case will not be approved, but put in a forever pending pile until something is decided. Even then, their case can be denied depending on other courts.

Edited March 20, 2013 by Harpa Timsah