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pooki3

AOS and visa expired but need to go back the country

By pooki3 in Adjustment of Status from Work, Student, & Tourist Visas

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newacct Experienced

newacct   688

Posted
Filed: Timeline
Posted
If OP filed to adjust in July after the I-94 expired, then OP cannot use AP even if AP is granted. The illegal overstay (the time after the I-94 expired and before filing to adjust) makes AP worthless.

This is incorrect. First, the 3-year ban only kicks in at 180 days of unlawful presence. So if the I-94 expired less than 180 days before they filed for I-485, then there isn't even consideration of a ban. It would not "worthless".

Then, this is assuming the OP's I-94 has an expiration date; if the OP was admitted for duration of status, they cannot get unlawful presence.

Third, even whether the unlawful presence ban can apply to entry on AP is doubtful because of the BIA decision last year in Matter of Arrabally, which was a precedent decision, which means it is binding on all of DHS.

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Teddy B Grand Master

Teddy B   17,252

Posted
Filed: Lift. Cond. (apr) Country: Canada
 Timeline
Posted

No, they are in legal status right now, because they have an I-485 pending.

They are in a legal status so long as they do not leave the US. The question being asked is about leaving the US. If the poster leaves without first obtaining AP, then the I-485 pending is worthless and the overstay/illegal presence would kick in.

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Nsempa Rookie

Nsempa   2

Posted
Filed: AOS (pnd) Timeline
Posted

Maybe.

OP filed to adjust in July. It doesn't matter when OP's visa expired. It depends on when the I-94 expired.

If OP filed to adjust in July before the I-94 expired, then OP can use AP.

If OP filed to adjust in July after the I-94 expired, then OP cannot use AP even if AP is granted. The illegal overstay (the time after the I-94 expired and before filing to adjust) makes AP worthless.

Since OP has not given us info on when the I-94 expired, no one can tell if he/she can use AP.

I've never heard of any conditions attached to AP with regards to I-94. May I know where this information can be found. I didn't find any such information during my research.

Timeline for I-130 and I-485 and I-765

06/07/2010 - Married

06/30/2012 - I-130 package mailed (filed separately)

07/03/2012 - Package received

07/05/2012 - NOA1 received

03/08/2013 - NOA2 received (Approval notice)

07/03/2013 - I-485/I-765 package sent

07/08/2013 - Package received

07/11/2013 - NOA1 for I-485/I-765 received

07/16/2013 - Biometrics Notice received

08/07/2013 - Biometrics completed

08/21/2013 - Notice to appear for interview received. Scheduled for 09/26/2013

09/05/2013 - Notice of EAD approval received

09/13/2013 - EAD delivered by USPS

09/26/2013 - Interview - ***Approved***

09/27/2013 - Card/Document production

09/27/2013 - Permanent Residence status registered- notice mailed

10/03/2013 - NOA2 for I-485/Welcome Letter received

10/04/2013 - Received an update- Card mailed

10/09/2013 - Card Received

To God Be The Glory Great Things He has Done!!!

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Karee Grand Master

Karee   4,190

Posted
Filed: Citizen (apr) Country: Thailand
 Timeline
Posted

I've never heard of any conditions attached to AP with regards to I-94. May I know where this information can be found. I didn't find any such information during my research.

Me neither. That's a new one.

You can click on the 'X' to the right to ignore this signature.

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newacct Experienced

newacct   688

Posted
Filed: Timeline
Posted

They are in a legal status so long as they do not leave the US. The question being asked is about leaving the US. If the poster leaves without first obtaining AP, then the I-485 pending is worthless and the overstay/illegal presence would kick in.

I said they are in legal status right now, period. I didn't say they didn't have unlawful presence previously. If they leave the U.S., if they had any unlawful presence before they filed I-485, it could affect them depending on how long it was. But the time while I-485 pending is not unlawful presence.

I've never heard of any conditions attached to AP with regards to I-94. May I know where this information can be found. I didn't find any such information during my research.

It's not a condition attached to AP. It's a condition for all entries in general. If there was more than 180 days of unlawful presence, and you depart the U.S., there is a 3-year ban. (and for 1 year, 10 year ban) At least that was until the ruling in Matter of Arrabally that said the unlawful presence ban does not apply to entries on AP.

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Darnell Grand Master

Darnell   8,478

Posted
Filed: IR-1/CR-1 Visa Country: China
 Timeline
Posted

since you filed the I-131 with the I-485 -

what news of biometric appointment ?

usually, AP issued 20 to 45 days after that biometric appointment.

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Teddy B Grand Master

Teddy B   17,252

Posted
Filed: Lift. Cond. (apr) Country: Canada
 Timeline
Posted (edited)

I said they are in legal status right now, period. I didn't say they didn't have unlawful presence previously. If they leave the U.S., if they had any unlawful presence before they filed I-485, it could affect them depending on how long it was. But the time while I-485 pending is not unlawful presence.

It's not a condition attached to AP. It's a condition for all entries in general. If there was more than 180 days of unlawful presence, and you depart the U.S., there is a 3-year ban. (and for 1 year, 10 year ban) At least that was until the ruling in Matter of Arrabally that said the unlawful presence ban does not apply to entries on AP.

My post was in response to the question "what happens if I leave" not "what status am I in now".If the person leaves with a pending I-485 without first receiving AP, they have no legal grounds to re-enter based on that pending I-485, it's gone. And if they have overstay, they will not be allowed back in, even under a new tourist visa. If you want to split hairs, they aren't in any status at all, there isn't a said status for a pending I-485, they are merely not subject to deportation.

Edited by Teddy B
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