Question about AOS and overstaying

[rebeccajo 14]

DelcoCouple alludes to reason for denial of AOS having to do with violation of the non-immigrant visa.

As some of us were hotly debating illegal work and it's forgiveness, we found this from the CFR.

Now we aren't lawyers and we don't know exactly what it means but it is interesting.

**************************

Title 8: Aliens and Nationality

PART 214—NONIMMIGRANT CLASSES

§ 214.1 Requirements for admission, extension, and maintenance of status.

(e) Employment. A nonimmigrant in the United States in a class defined in section 101(a)(15)( of the Act as a temporary visitor for pleasure, or section 101(a)(15)© of the Act as an alien in transit through this country, may not engage in any employment. Any other nonimmigrant in the United States may not engage in any employment unless he has been accorded a nonimmigrant classification which authorizes employment or he has been granted permission to engage in employment in accordance with the provisions of this chapter. A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section 241(a)(1)©(i) of the Act.

[DelcoCouple 1]

DelcoCouple alludes to reason for denial of AOS having to do with violation of the non-immigrant visa.

As some of us were hotly debating illegal work and it's forgiveness, we found this from the CFR.

Now we aren't lawyers and we don't know exactly what it means but it is interesting.

**************************

Title 8: Aliens and Nationality

PART 214—NONIMMIGRANT CLASSES

§ 214.1 Requirements for admission, extension, and maintenance of status.

(e) Employment. A nonimmigrant in the United States in a class defined in section 101(a)(15)( of the Act as a temporary visitor for pleasure, or section 101(a)(15)© of the Act as an alien in transit through this country, may not engage in any employment. Any other nonimmigrant in the United States may not engage in any employment unless he has been accorded a nonimmigrant classification which authorizes employment or he has been granted permission to engage in employment in accordance with the provisions of this chapter. A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section 241(a)(1)©(i) of the Act.

For those that can not sleep at night the full title may be found HERE. The relief of AOS is clearly discretionary like it or not guys. I suspect that it is indeed rare that a denial is made without reason being given but that doesn't change the possibility that such denial can occur. All moot points really in the real world that most of us experience. If anything it shows no matter how clear cut your case appears the legislators usually leave themselves room to get you with a catch all section if all else fails should they be so inclined

Personally I think for the vast majority of people in this forum these are fairly academic and moot points but never the less of interest to some who want to delve further than the surface layers.

[Killer_Clown_2009 0]

If you are in the US on a tourist visa and start working, you will be considered out of status and unlawfully present the day that you begin your unauthorized work.

I've seen this example given somewhere in regard to overstays and bars. Someone had overstayed their VISA date by a few months, but due to the Visa being violated and they becoming out of status 5 months before the visa expiered (due to working without authorization) they were given a bar to reentry.

I'm not sure if it has implications for an AOS application seeing as the spouse is already in the US.

Edited February 17, 2007 by jane2005

[DelcoCouple 1]

Can you also post the link to the site where you were advised that AOS applications can be denied for no reason?

I couldn't find it on the link you did post.

Look around line 21

http://www.us-immigration-attorney.com/pri...t-of-status.htm

[Killer_Clown_2009 0]

I don't think that USCIS denies people AOS for no apparent reason and I think that if they do deny someone they have policies in place to provide the client with a reason for the denial. I guess I misunderstood your post. If you are simply stating that an AOS application can be denied... then I already knew that.

[Killer_Clown_2009 0]

Can you also post the link to the site where you were advised that AOS applications can be denied for no reason?

I couldn't find it on the link you did post.

Look around line 21

http://www.us-immigration-attorney.com/pri...t-of-status.htm

You'll have to cut and paste in the section. I still do not see where it says that AOS applications can be denied for no reason...I see a bunch of reasons why someone would not be eligible for AOS (ie reasons) but nothing to indicate that AOS applications can be denied and no reason given.

Edited February 17, 2007 by jane2005

[Kez/JWolf 6]

Also if you go to the USCIS website and read the information it gives about who can not file for AOS it also say it does not apply if you are married to a USC...

But I guess your lawyer friend forgot to include this information.....

Also the 30 day change of status does not stop you from being approved for AOS.... it stems from a 30/60/90 days rule that some lawyers are trying to suggest are the rules.... it is not.

Kez

[tiberonsuave 0]

WEll...if a one in a million occurs in your case...the results are one hundred percent!

t

DelcoCouple alludes to reason for denial of AOS having to do with violation of the non-immigrant visa.

As some of us were hotly debating illegal work and it's forgiveness, we found this from the CFR.

Now we aren't lawyers and we don't know exactly what it means but it is interesting.

**************************

Title 8: Aliens and Nationality

PART 214—NONIMMIGRANT CLASSES

§ 214.1 Requirements for admission, extension, and maintenance of status.

(e) Employment. A nonimmigrant in the United States in a class defined in section 101(a)(15)( of the Act as a temporary visitor for pleasure, or section 101(a)(15)© of the Act as an alien in transit through this country, may not engage in any employment. Any other nonimmigrant in the United States may not engage in any employment unless he has been accorded a nonimmigrant classification which authorizes employment or he has been granted permission to engage in employment in accordance with the provisions of this chapter. A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section 241(a)(1)©(i) of the Act.

For those that can not sleep at night the full title may be found HERE. The relief of AOS is clearly discretionary like it or not guys. I suspect that it is indeed rare that a denial is made without reason being given but that doesn't change the possibility that such denial can occur. All moot points really in the real world that most of us experience. If anything it shows no matter how clear cut your case appears the legislators usually leave themselves room to get you with a catch all section if all else fails should they be so inclined

Personally I think for the vast majority of people in this forum these are fairly academic and moot points but never the less of interest to some who want to delve further than the surface layers.

[KarenCee 3]

http://www.us-immigration-attorney.com/pri...t-of-status.htm

Denials

The second thing to understand about AOS is that it is discretionary, not mandatory. It is possible for a person who is technically eligible for immigrant status to nonetheless be denied adjustment of status in the exercise of discretion. The most common instances of such discretionary denials involve cases where the applicant abused the nonimmigrant process.

For example, if a person applies for admission into a school or for a change in nonimmigrant status within 30 days of entry, they are presumed to have acted in bad faith. That is, they had the preconceived intent to make the change and they used an easier to obtain visa in order to evade the normal screening process abroad for the visa they really wanted.

If the application occurs between 30 and 60 days after entry, no presumption is made, but there is a strong suspicion that the person may have acted in bad faith. The case will be scrutinized carefully. If the application occurs more than 60 days after entry, the presumption is that the applicant acted in good faith. Both the USCIS and the State Department reserve the right to re-examine such cases, however, if there is any additional evidence of wrongdoing. If an AOS applicant has anything in his or her past visa history that suggests that he or she may have abused the visa process, or otherwise tried to take shortcuts, the USCIS has made it clear that they can and will deny such adjustment applications in the exercise of discretion. Discretionary AOS refusals are not subject to administrative review. While federal court review is theoretically possible, few judges are willing to attempt to substitute their judgment for that of USCIS officers in the absence of gross abuse of discretion.

Hmmm....there doesn't seem to be a point blank statement that indicates denial without a reason given. Discretionary does not mean without reason. Of course I am sure our fine member who posted this in the first place will happen along and give those of us a proper explanantion.

[Dr_LHA 3]

This is an odd debate. I'll quote the Immigration and Naturalization act here as I've done before:

© Subsection (a) shall not be applicable to

© Subsection (a) is "Adjustment of Status". The next bit says who can't get AOS:

(1) an alien crewman; (2) an alien (other than an immediate relative as defined in section 201(B ) or a special immigrant described in section 101(a)(27)(H), (I), (J), or (K)) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 212(d)(4)©; (4) an alien (other than an immediate relative as defined in section 201(B )) who was admitted as a nonimmigrant visitor without a visa under section 212(l) or section 217; (5) an alien who was admitted as a nonimmigrant described in section 101(a)(15)(S),(6) an alien who is deportable under section 237(a)(4)(B ); (7) any alien who seeks adjustment of status to that of an immigrant under section 203(B ) and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3), or who has otherwise violated the terms of a nonimmigrant visa.

The law clearly exempts spouses of US citizens from denial based on illegal work or overstay.

If anyone can find a single case where someone who is married to a USC has been denied AOS for that reason, then please point me to it. I personally know several people who have lived and worked here for years illegally, and got AOS no problem as they got married to a USC.

Edited February 17, 2007 by dr_lha

[athena_ny 1]

This is an odd debate. I'll quote the Immigration and Naturalization act here as I've done before:

© Subsection (a) shall not be applicable to

© Subsection (a) is "Adjustment of Status". The next bit says who can't get AOS:

(1) an alien crewman; (2) an alien (other than an immediate relative as defined in section 201(B ) or a special immigrant described in section 101(a)(27)(H), (I), (J), or (K)) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 212(d)(4)©; (4) an alien (other than an immediate relative as defined in section 201(B )) who was admitted as a nonimmigrant visitor without a visa under section 212(l) or section 217; (5) an alien who was admitted as a nonimmigrant described in section 101(a)(15)(S),(6) an alien who is deportable under section 237(a)(4)(B ); (7) any alien who seeks adjustment of status to that of an immigrant under section 203(B ) and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3), or who has otherwise violated the terms of a nonimmigrant visa.

The law clearly exempts spouses of US citizens from denial based on illegal work or overstay.

If anyone can find a single case where someone who is married to a USC has been denied AOS for that reason, then please point me to it. I personally know several people who have lived and worked here for years illegally, and got AOS no problem as they got married to a USC.