AoS overstay

[Kim Mertens 54]

I`m in the midst of working on my AoS package and saw you should file before your I-94 expires. Mine expired on January 22nd of 2016 (got married on November 24th 2015, arrived October 25th 2015).

Am I going to get in trouble for filing so late?

In October I have to fly back to Belgium with my husband, will I be able to if I have my travel permission by then, even though I have accumulated overstay? I don`t wanna be leaving the states with a travel permission thinking all will be good and then not be allowed back in.

I also read somewhere if you do accumulate overstay try and keep it under 3 months, but although I will be sending it in next week, my NOA1 will probably be shortly after the 3 month mark (April 22nd).

I mainly just wonder what the risks are, consequences, trouble I could get in, if any,

and if I will be able to travel afterwards (once I get my travel permission) without getting banned for some time, or having to restart the whole application with an I-130.

Any information is very welcome!

Kim

[newacct 688]

It doesn't have any effect on the AOS application. You should get Advance Parole within 3 months of applying. You should be able to travel with AP and return to the US with it with no problem.

[Kim Mertens 54]

It doesn't have any effect on the AOS application. You should get Advance Parole within 3 months of applying. You should be able to travel with AP and return to the US with it with no problem.

I just wonder if it doesn`t have any consequences then why does it work the way it work, the whole accumulating overstay though you got married thing? It seems odd to me that we get popped in that category but when it comes to consequences there is none, idk not saying you`re wrong, just worrying about what could go wrong.

[KayDeeCee 4,896]

There is no time limit/deadline in which to file for AOS. As long as you married within 90 days then you are eligible to file based on your approved I-129F petition and fulling the requirements of the K-1 visa. However, you will be out of status and begin to accrue unlawful presence between your I-94 expiring and filing for AOS. Once you file for AOS, you then enter a period of authorized stay while waiting for your green card approval.

Overstay has no impact on your green card approval.

And you would need 180+ days of overstay to incur a bar, BUT that bar would not even matter because adjustment applicants with AP can travel and re-enter without being banned.

https://fam.state.gov/fam/09FAM/09FAM030209.html

9 FAM 302.9-14(B)(2) (U) Time Frames
(CT:VISA-74; 03-03-2016)
...
c. (U) INA 212(a)(9)(B)(i)(II) Departure at Any Time: 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)(B)(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.)

[Penguin_ie 5,997]

The consequence is that while you are in overstay (ie before you file), you cannot legally work, and if you left the country- say, for a family emergency- you cannot return (that one has gotten several members on here) until a new visa is filed, and you may have a ban depending on the length of overstay. You can also technically be detained by ICE and deported until you file the AOS. However, you are almost always allowed to quickly file AOS even if that does happen.

Edited April 15, 2016 by Penguin_ie

[ALIENRJ187 43]

We filed about 40 days after my fiancee's (now wife) I-94 expired. We needed time to prepare for the wedding which was 2.5 months after her entry and had to wait for the civil surgeon to have an opening so we could get the I-693 finished as well as preparing all our other AoS paperwork. We are having no problems, RFEs or abnormal delays in our process. I've seen member timelines where they didn't file for 5 months after their I-94s expired and they got through the system with no problems. I'd say file sooner than later since it does make you worry, and as other members have mentioned the overstay buildup could affect a bar.

[newacct 688]

and as other members have mentioned the overstay buildup could affect a bar.

Only if you leave the country.