I think I have been overstayed for 23 days...can I use AP later?

[lyz614 1]

Hello, my F1-OPT expires on 5/11/2015. the last day of the 60-days grace period is 7/10. I got married to a USC on 7/11, and I receive the I-130 and I-485 case receipt by text message on 8/3. I guess I have been slightly overstayed for 23 days. My question is, when I receive Advance Parole, will I be able to use it to go to Mexico for 5 days and back?

[newacct 688]

First, you do not accrue unlawful presence simply for being out of status; people on F1 are given "D/S", not a specific date, on their I-94, and thus do not automatically trigger unlawful presence just by staying past a certain date.

Second, you would need 180 days of unlawful presence for leaving to trigger a ban.

Third, even if you had lots of unlawful presence, Matter of Arrabally said that someone leaving on AP does not trigger the ban.

[lyz614 1]

First, you do not accrue unlawful presence simply for being out of status; people on F1 are given "D/S", not a specific date, on their I-94, and thus do not automatically trigger unlawful presence just by staying past a certain date.

Second, you would need 180 days of unlawful presence for leaving to trigger a ban.

Third, even if you had lots of unlawful presence, Matter of Arrabally said that someone leaving on AP does not trigger the ban.

Thank you for your clear and logical reply! I have been researching about this on internet like crazy. What you said is same as what I prefer to believe...However, the original description from the I-131 instruction makes me very paranoid.

1) I do have "D/S" on my I-94, but I am pretty sure my college updated my OPT status. Actually, I emailed my college at the end, and they replied me that I have exactly 60 days from the last day on your OPT card by which I must depart the U.S. or otherwise change the status.

2) I guess that I have been "out-of-status" for 23 days, but no unlawful presence yet. Will I be consider as out-of-status until I receive GC or I changed from out-of status to "authorized stay" when I receive the I-485 &1-130 cases receipt from USCIS?

3) Do you happen to know what the CBP officer looking for at secondary check?... since technically 3/10 years ban cannot applied. I don't know what will stop a person returning with AP...or to say... why instruction says "receiving AP is not an guarantee"?

[newacct 688]

1. Yes, you "must depart" because you are out of status and don't have a pending application. My point is that there is no unlawful presence.

2. You will be out of status until you receive your GC, but you will not be deportable once they receive your I-485.

3. The same as saying that a visa is not a gurantee either. If you have some other inadmissibility you could be denied entry.

[lyz614 1]

1. Yes, you "must depart" because you are out of status and don't have a pending application. My point is that there is no unlawful presence.

2. You will be out of status until you receive your GC, but you will not be deportable once they receive your I-485.

3. The same as saying that a visa is not a gurantee either. If you have some other inadmissibility you could be denied entry.

Thank you again!

Sooo...even if i was able to file i-485 within my last 60 days. I would still be out-of-status until I receive the GC. The difference is that now I have 23-days which was deportable. That's only "bad thing i did" which i can think of.

1) Is it possible that I have already triggered something without knowing which make me unlawful presence? Maybe they send me notice that went to my old address?

2) If the CBPO only check my passport, I-94 and AP, it will be totally fine I guess. But I think they can access to ALL the information on their computers anyways. Am I right?

[newacct 688]

Thank you again!

Sooo...even if i was able to file i-485 within my last 60 days. I would still be out-of-status until I receive the GC. The difference is that now I have 23-days which was deportable. That's only "bad thing i did" which i can think of.

1) Is it possible that I have already triggered something without knowing which make me unlawful presence? Maybe they send me notice that went to my old address?

2) If the CBPO only check my passport, I-94 and AP, it will be totally fine I guess. But I think they can access to ALL the information on their computers anyways. Am I right?

Again, even if you had unlawful presence, 1) you wouldn't have had enough to trigger a ban on leaving, and 2) unlawful presence ban doesn't apply to people leaving on AP anyway.

[lyz614 1]

Again, even if you had unlawful presence, 1) you wouldn't have had enough to trigger a ban on leaving, and 2) unlawful presence ban doesn't apply to people leaving on AP anyway.

Hmm, that's true, I forgot that part! Thank you so much!

[lyz614 1]

Look what I just found!!

About F1, D/S and "unlawful presence".

http://www.state.gov/documents/organization/87120.pdf

"For persons who have been admitted for duration of status (DOS) (as is usually the case with aliens in A, G, F, J, and I visa status), unlawful presence will not accrue unless an immigration officer, IJ, or the BIA finds a status violation in the context of a request for an immigration benefit."

"In duration of status cases where DHS or an IJ or the BIA makes a formal status violation finding, the alien begins accruing unlawful presence on the date of the finding"

"DHS has interpreted "period of stay authorized by the Secretary of Homeland Security" as used in the construction of unlawful presence in INA 212(a)(9)(B)(ii) to include:

For aliens inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS, IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only begin to accrue as of the date of the formal finding;

For aliens who have properly filed an application for adjustment of status to that of a lawful permanent resident (LPR), the entire period of the pendency of the application, even if the application is subsequently denied or abandoned, provided the alien (unless seeking to adjust status under NACARA or HRIFA) did not file for adjustment "defensively" (i.e., after deportation proceedings had already been initiated); "

My understanding is, the finding and accrue of "unlawful presence" will happen after being "authorized stay" base on AOS, or at lease same time. So there's no unlawful presence at all.

[DC85 113]

The information that was provided to you is pretty accurate except the last one." unlawful presence ban doesn't apply to people leaving on AP anyway. " you can't use advance parole if you have more than 180 day of unlawful presence. To OP, you shouldn't have a problem to use the advance parole.

[lyz614 1]

The information that was provided to you is pretty accurate except the last one." unlawful presence ban doesn't apply to people leaving on AP anyway. " you can't use advance parole if you have more than 180 day of unlawful presence. To OP, you shouldn't have a problem to use the advance parole.

9 FAM 40.92 N2.2 INA 212(a)(9)(B)(i)(II) Departure At Any Time

(CT:VISA-2255; 02-18-2015)

The 10-year bar under INA 212(a)(9)(B)(i)(II) does not contain the same language as the three-year bar under INA 212(a)(9)(i)(I) relating to the alien having departed voluntarily prior to commencement of removal proceedings. Thus, an alien who departs the United States after having been unlawfully present for a period of one year or more subsequent to April 1, 1997, is barred from returning to the United States for 10 years, whether the departure was before, during, or after removal proceedings and regardless of whether the alien departed on his or her own initiative or under removal order. The one exception to this rule (see also INA 212(a((9)(B)(v)) is that an alien cannot become inadmissible under INA 212(a)(9)(B)(i)(II) solely by virtue of a departure and return to the United States undertaken pursuant to a valid grant of advance parole based on the alien’s pending application for adjustment of status. Note that this does not preclude a trip under a grant of advance parole from being considered a “departure” for any other purposes under the INA, nor does it call into question the applicability of any other inadmissibility ground. On the contrary, it is well settled that an alien who leaves the United States and returns under a grant of advance parole is subject to those grounds of inadmissibility that may apply, rather than grounds of deportability, once parole is terminated. (See Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012.)

I think this means 10-year bar will not trigger by the "departure" with AP....but i don't get why only the 10-year bar is the exception...

[lyz614 1]

9 FAM 40.92 N2.1 INA 212(a)(9)(B)(i)(I) Departure Prior to Commencement of Proceedings Required (CT:VISA-2295; 06-10-2015)

The three-year bar of INA 212(a)(9)(B)(i)(I) applies only to aliens who left the United States voluntarily before the DHS commenced proceedings against them. If the alien was unlawfully present for a period of more than 180 days but less than a year and was placed in proceedings before the alien's departure, he or she would not be inadmissible under the three-year bar of INA 212(a)(9)(B)(i)(I). However, if ordered removed such alien would become inadmissible under INA 212(a)(9)(A).

The rule for 3-year bar is pretty weird, it is like, If you leave willingly, you can't get back at least for 3 years. But if you are force to leave, the bar will not apply...

if I read this right...

[newacct 688]

The information that was provided to you is pretty accurate except the last one." unlawful presence ban doesn't apply to people leaving on AP anyway. " you can't use advance parole if you have more than 180 day of unlawful presence. To OP, you shouldn't have a problem to use the advance parole.

What I said is true. Read Matter of Arrabally.