AOS pending,B1/B2 extension denied,Out of status for more than 180days

[JungBahadur 0]

its EB1A

[Cyberfx1024 7,980]

22 minutes ago, JungBahadur said:

its EB1A

I asked you what you did not what visa you signed up for.

[Californiansunset 336]

3 hours ago, JungBahadur said:

Hi there, 

Well, I landed USA on Jan 24,2017 on B2 visitor visa.My visa expiry date wad july 23 ,2017.

On June 02,2017 I applied for B1/B2 (I-539) visa  extension.

Then I filed I-140 as EB-1 on June 09,2017 .With Rfe filing ,my I-140 was approved on September. I filed I-485 on September 29  which are still in pending now.My fingerprint is also done on Nov 19.

On 14th Feb 2018,I got my visa extension response  notice that says " your request to extend your stay is denied.This decision may leave you without lawful immigration status.If you are present in the united states in violation of the law,you are required to depart immediately. Remaining in the united states without a lawful status after the date of this decision may result in the accrual of unlawful presence under section 212(a)(9)(B) of the immigration and nationality act (INA) and may adversely affect your ability to return to the united states lawfully in the future......................."

What should i do now.Am I out of status now?

 my pending i-485 was transferred to NBC that has jurisdiction over my case on march 09,2018

AP and EAD was approved on march 08,2018.

My lawyer said to me that I should leave USA now and try to re-enter USA using previous B1/B2 visa that will give me new I-94.If not allowed then show AP to enter.

I am really confused what I should I do.I read somewhere that if  AOS is filed within 180 days period after visa expiry , it will be considered under INA section 245k for employment based applicants.

I really don't know what should be done.just wait and see what the final result say or leave US and reenter.Please help me.I will highly appreciate you.

 

Without knowing much about the EB1A and being able to adjust status so fast after approval (what the heck?! how can you go from being a tourist showing no immigration intent to trying to immigrate so fast??) I hope you know that your B visa extension was set up to fail from the beginning on. I extended my B visa successfully and therefore know which documents you had to submit. You tried to prove to USCIS that even though you will be staying longer in the country that you have no intent to remain in the U.S. nor that you have intent to work here in the U.S. (pretty much that you will keep on doing what you did before....being a VISITOR).  

By concurrently filing another visa that has dual immigration intent, your B visa was automatically denied without even giving it a chance. You are pretty darn lucky that both of your applications didn't get denied immediately because that is what often happens when people on a B visa file for the extension and then file for a H1B visa (which is pretty much the same scenario as yours). 

I hope you can see how a IO at the AOS interview will give you one heck of a hard time considering what a big mess you got yourself in.

I went home after my B visa extension because I knew it was the right thing to do. I would consider doing what your lawyer told you as well and go home. 

 

 

EDIT: Your B visa is invalid now that your extension was denied!!! You need to get a new B visa at the consulate in your home country!!!

Edited March 22, 2018 by Californiansunset

[Bfree3 132]

  @JungBahadur you already have AP and EAD  approval? have you already received them? why would you leave if you have those?

[kris&me 572]

6 hours ago, Ben&Zian said:

 

Not that the OP is trying to bypass anything, not saying that myself; but these are reasons I personally can't stand any AOS from inside the US from like tourist visas and such. It's just a way to bypass the longer process where you may not have even qualified... and it is highly annoying.

totally agree 

they should have to return home and go thru the same process we do

[AtlToBlr 64]

12 hours ago, kris&me said:

totally agree 

they should have to return home and go thru the same process we do

Why?

[JungBahadur 0]

I dont know why they approved my i140,received i485 case.

 even they approved and delivered me EAD/AP card.

Does anyone have experience about INA 245k cases sothat I could save my GC??

[WeGuyGal 1,052]

3 hours ago, AtlToBlr said:

Why?

Why?  Because that's the right way to do it.  As in not to look for shady loopholes entering the US on a B2 with the intent to adjust status as the OP appears to be doing. 

[WeGuyGal 1,052]

19 hours ago, Californiansunset said:

 

 You need to get a new B visa at the consulate in your home country!!!

Unlikely.. as OP has shown immigrant intent by filing i485

[Boiler 45,525]

Obviously there is a lot of things that have not been mentioned that could be relevant to this case, some things that come to mind, why did you not apply for premium processing, have you worked.

 

If the lawyer really suggested re entering on a B then you need a new Lawyer.

 

EAD and AP is dependent on the underlying petition, so of that is denied they go away as well.

[Crazy Cat 41,886]

4 hours ago, AtlToBlr said:

Why?

Because I think the vast majority of people who marry on a B2 visa and stay to adjust had intent to do so when they entered the country.  That circumvents the legal process.  Of course, there are no available statistics to prove my argument, but in practical terms, how many people  can come to visit the US  (expecting to be here a short time), suddenly decide to marry someone, then remain here for 4 months....leaving EVERYTHING back home....

 

In my mind, those people who come here and marry on a B2 should have to return to their home country to wait out the CR-1 process....most of us have had to endure the separation....it can be done.

Edited March 23, 2018 by missileman

[Californiansunset 336]

23 minutes ago, WeGuyGal said:

Unlikely.. as OP has shown immigrant intent by filing i485

I didn't say that it will be approved, all I said is that the current B visa is invalid and that he would have to get a new one. Apart from the I-485 filing, B visas are rarely granted after a denied B visa extension. 

[kzielu 1,149]

4 hours ago, JungBahadur said:

I dont know why they approved my i140,received i485 case.

 even they approved and delivered me EAD/AP card.

Does anyone have experience about INA 245k cases sothat I could save my GC??

Because I-140 approval has nothing to do with legal / illegal presence. I-485 does and you will be called for an interview.

Edited March 23, 2018 by kzielu

[Californiansunset 336]

Also, for everyone talking about his AOS trough marriage.... people on E visas don't need to be married to a significant other in order to adjust status....you can get a greencard just by holding an E visa. I'm assuming he never married. The reason he adjusted is because that way the overstay can be forgiven trough INA 245k if he falls into that category.

The only odd thing is that you don't come here as visitor and then all of a sudden decide to immigrate... which is probably also what the IO is going to question at the AOS interview. 

Edited March 23, 2018 by Californiansunset

[Californiansunset 336]

4 hours ago, JungBahadur said:

I dont know why they approved my i140,received i485 case.

 even they approved and delivered me EAD/AP card.

Does anyone have experience about INA 245k cases sothat I could save my GC??

Find a lawyer who has experience with INA 245k. Your current one sounds like he is not very experienced telling you to try to enter with a B visa that is definitely invalid now. Also no point to leave and use AP to get around the unlawful status violation because "Reentry based on an advance parole does not reset the clock for the purpose of 245(k)" (Source: https://www.murthy.com/2011/10/07/green-card-possible-after-status-violation-245k-benefit/).