Accumulating Unlawful Presence

[Zedayn 485]

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

She accumulated 20 days of unlawful presence before you were married. She accumulated another 60 days (approximately) of unlawful presence until her AOS application was accepted for processing. She recently received notice that her AOS was denied (within the last week?) so she accumulated around another 7 days of unlawful presence. In total she has approximately 87 days of unlawful presence (around 3 months).

The 1 1/2 years it took to make a decision on her AOS does NOT count towards her overstay.

[belinda63 3,041]

OK, there it is in black and white....thanks Teddy.

Two periods of overstay are in play. 1. from the expiration of the I-94 until the filing of the AOS added to the day after the date the AOS was denied until the person leave.

[Teddy B 17,252]

OK, there it is in black and white....thanks Teddy.

Two periods of overstay are in play. 1. from the expiration of the I-94 until the filing of the AOS added to the day after the date the AOS was denied until the person leave.

I'm just glad I didn't post the link from the other window I had open.

[tringuyen 11]

She accumulated 20 days of unlawful presence before you were married. She accumulated another 60 days (approximately) of unlawful presence until her AOS application was accepted for processing. She recently received notice that her AOS was denied (within the last week?) so she accumulated around another 7 days of unlawful presence. In total she has approximately 87 days of unlawful presence (around 3 months).

The 1 1/2 years it took to make a decision on her AOS does NOT count towards her overstay.

ok, so the 2 periods are added together to make 1 total?

[Zedayn 485]

ok, so the 2 periods are added together to make 1 total?

Yes.

[Boiler 45,927]

How many days has she been here?

Deduct 90.

?

[AnotherLostSoul 167]

If she is soon to be ex-wife then why the hell do you care at all about this? It'll be then her problem, not yours. However, if you want to work things out, then try to do that and go through the whole AOS process...I'm a bit confused on this whole thread....

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

[tringuyen 11]

If she is soon to be ex-wife then why the hell do you care at all about this? It'll be then her problem, not yours. However, if you want to work things out, then try to do that and go through the whole AOS process...I'm a bit confused on this whole thread....

depending on how long she's been unlawfully present, she's got different strategies/options...want to know her options as it would affect me. I want nothing to do with her but...

[Hank_ 9,174]

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?

1) There is no requirement to file AOS within 90 days. The only 90 day requirement is to get married within 90 days of POE.

2) I-130 won't "cure" anything in regards to status if not married within 90 days, beneficiary needs to depart the USA. It becomes a DO OVER.

[Harpa Timsah 13,258]

depending on how long she's been unlawfully present, she's got different strategies/options...want to know her options as it would affect me. I want nothing to do with her but...

That is not true.

Overstay or not, there is no path for her to stay in the US, unless you abused her or she is otherwise the victim of a crime.

A K-1 can only adjust through marriage to the petitioner; she cannot stay and marry anyone else later.

She needs to go home.

Is there something specific you are worrying or wondering about so the people here can advise?

1) There is no requirement to file AOS within 90 days. The only 90 day requirement is to get married within 90 days of POE.

2) I-130 won't "cure" anything in regards to status if not married within 90 days, beneficiary needs to depart the USA. It becomes a DO OVER.

A concurrent application for marriage to the petitioner after 90 days would in fact be a "cure."

[tringuyen 11]

That is not true.

Overstay or not, there is no path for her to stay in the US, unless you abused her or she is otherwise the victim of a crime.

A K-1 can only adjust through marriage to the petitioner; she cannot stay and marry anyone else later.

She needs to go home.

Is there something specific you are worrying or wondering about so the people here can advise?

A concurrent application for marriage to the petitioner after 90 days would in fact be a "cure."

Her and her family used me as a ticket to come to America so I wrote to uscis claiming marriage fraud. I think she will stay here illegally and make money for her family. or she may get into a fake marriage (but then she'll have to depart the u.s. to do aos). if she does leave the u.s. for fake marriage, she'll have only a couple/few months before accruing 180 days of unlawful presence.

I read if she works illegally before aos , before getting her work permit, then the pending time during aos is counted as unlawful presence. if that's the case, then she has over a year of unlawful presence. I may go report she worked without a work permit...

Being desparate, she may go the vawa route too. if she goes that route, I'm not sure how fight that since they don't allow my testimony.

[JimVaPhuong 4,863]

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.

You probably read that time spent waiting for a decision on the AOS will be counted as unlawful presence if the AOS application is denied because it wasn't filed in a timely manner (i.e., while the alien still had lawful status), or if the filing was frivolous, or if the alien had been unlawfully employed. This is true, but only if one of these reasons is the basis for denying the AOS. This won't happen to someone who is applying for AOS as the spouse of a US citizen because of INA 245(c )(2). Under that section of the law, someone applying for AOS as the spouse of a US citizen isn't required to have maintained their lawful non-immigrant status, nor are they probited from adjustment because of unlawful employment. In other words, their AOS can't be denied for those reasons, so the AOS application time won't be added to their unlawful presence. The unlawful presence clock stops when the AOS application is accepted. The clock disappears if the AOS is approved. The clock resumes running if the AOS is denied.

[tringuyen 11]

she has no police reports, no restraining orders against me. she even wanted to come back but I refused. but she ran off to the women's shelter and got an immigration lawyer. maybe they'll claim emotional abuse. I do have a police report against her for hitting me and I submitted that to uscis.

You probably read that time spent waiting for a decision on the AOS will be counted as unlawful presence if the AOS application is denied because it wasn't filed in a timely manner (i.e., while the alien still had lawful status), or if the filing was frivolous, or if the alien had been unlawfully employed. This is true, but only if one of these reasons is the basis for denying the AOS. This won't happen to someone who is applying for AOS as the spouse of a US citizen because of INA 245(c )(2). Under that section of the law, someone applying for AOS as the spouse of a US citizen isn't required to have maintained their lawful non-immigrant status, nor are they probited from adjustment because of unlawful employment. In other words, their AOS can't be denied for those reasons, so the AOS application time won't be added to their unlawful presence. The unlawful presence clock stops when the AOS application is accepted. The clock disappears if the AOS is approved. The clock resumes running if the AOS is denied.

Thanks for the clear explanation.