Accumulating Unlawful Presence

[Darnell 8,478]

1] I know the I-130 will cure failure to file AOS in the 90 days. 2] But if you fail to marry in 90 days and marry late, will the I-130 cure that too, or is it all over?

I dislike punching holes in english labels, but

1. not needed if marry inside that 90 days, and

2. must add I-130 based on that scenario

[Caryh 5,206]

485 is denied. So does start at day 1 again of being unlawfully present?

The term in her case, is present without authorization. She was accumulating it when the I-94 expired, the count stopped with a petition acceptance, the count starts again after denial.

1, 2, 3, petition acceptance, denial, 4, 5, 6, etc....

This usually isn't a big deal, as the AOS is supposed to be filed shortly after marriage, and its not an issue unless you exceed 6 months.

[kitthekat 1,317]

I know the I-130 will cure failure to file AOS in the 90 days. But if you fail to marry in 90 days and marry late, will the I-130 cure that too, or is it all over?

there's no requirement to file AOS before the 90 days are up. you don't have to include the I-130 as long as you married within those 90 days, even if you are applying for AOS, say, 2-3 months after.

some have said it's a good idea to include the I-130 if you're applying very late (e.g. years after).

if the couple marries after 90 days, then the I-130 is required in addition to the AOS set. the 'unlawful presence' from the 90 days till the forms are filed is forgiven for spouses of USCs. For K1s, the marriage *has* to be to the original petitioner.

edit: yeah, what darnell said ( )

[belinda63 3,038]

Please stick to the OPs question. How is the overstay calculated.

AOS was denied.

1. Does overstay time start on Expiration of the I-94 and continue until person leaves (since AOS was denied)?

2. Does overstay time start on expiration of I-94 until NOA-1 of AOS then begin again on date of denial of AOS (the two add together)?

3. Does overstay start only upon denial of AOS?

[Avery Cates 1,141]

Number 1, if I'm not mistaken.

[belinda63 3,038]

I'm leaning towards #1 also since the AOS was denied but I can't find any source to support it.

[tringuyen 11]

Yes, I'd like to know how is unlawful presence calculated. Here's the situation:

She came in on the k1 visa. We married about 20 days after her I-94 expired. We filed AOS (filed 485 and no 130) about 2 months after that. After 4 months of marriage, I filed for divorce. it's been 1.5 years since 485 was filed and recently, her 485 was denied.

So my question is, in this case, how is her unlawful presence calculated?

Tri

Edited May 16, 2014 by tringuyen

[belinda63 3,038]

I believe, since the AOS was denied, she has been accumulating overstay since the I-94 expired.

[Zedayn 485]

Unlawful presence accumulates when the I-94 expires. While an AOS is in process...meaning from NOA1 date to a decision date...the accumulation of unlawful presence is put on hold. It will begin again, from the point it left off, when the AOS is denied. You do not accumulate days of unlawful presence while an AOS is in process.

Example:

You have 25 days of unlawful presence, and you receive your NOA1 from the AOS. To clarify, your 25 days is counted from the I-94 expiration until the NOA1 of the AOS.

When you receive the NOA1, you STILL HAVE 25 days of unlawful presence. BUT, you are no longer accumulating additional days.

During the entire time your AOS is pending, you STILL HAVE the same 25 days of unlawful presence.

Now, six months later (still only 25 days of unlawful presence), you receive a letter stating your pending AOS was denied. NOW you are accumulating days of unlawful presence again, ADDED TO the 25 you already have. So the next day, you will have 26 days...the day after that 27...etc.

Hope that clears things up a bit.

[tringuyen 11]

I'm reading more on internet and if aos is denied and if she was unlawfully employed, then the time pending aos counts towards unlawful presence.

[Teddy B 17,252]

The following link should be everything you need to know about determining when an alien accrues unlawful presence.

http://www.visajourney.com/forums/topic/496386-accumulating-unlawful-presence/page-2

[belinda63 3,038]

Sorry Teddy your link just brings us back here.

[Eric-Pris 1,606]

I'm reading more on internet and if aos is denied and if she was unlawfully employed, then the time pending aos counts towards unlawful presence.

Why do you have so much interest in how much overstay your soon-to-be EX-wife is accruing?

[Hypnos 6,576]

As stated above by myself and others:

Overstay begins when the I-94 expires, and stops when USCIS accept the I-485 for processing.

If AoS is denied then overstay starts again from the date of denial, and the total is cumulative from the two figures.

Edited May 16, 2014 by Hypnos

[Teddy B 17,252]

Sorry Teddy your link just brings us back here.

Ugh, sorry bout that. Try this one.

http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF

Page 9 of that link explains the situation with the op and his wife.

Hypnos is correct. A K-1 comes with an expiry date and is not a duration of status visa. Once the I-94 expires, the unlawful presence begins unless an adjustment of status has previously been filed.

Edited May 16, 2014 by Teddy B