How do you know if you overstayed (F1) or trigger a ban with AP?

[e_xterrixx 32]

Hi Guys,

 

Hoping someone can shed more light on this. I came on an F1 (completed it without problems or overstays and got OPT EAD), got married to USC and started AOS. First AOS was denied in June 2016, second AOS application is still pending. I just received my renewal EAD and AP documents and intending to travel in end of Aug-Sept. How do I know if I've overstayed my status or done anything (trigger a ban) that warrants additional scrutiny on my way back? I spoke to my attorney yesterday and he said I have not based on his calculations and you will only trigger a ban if you've overstayed 6months - 1year. Is this correct? Can they ban you even though married to a USC?. I read about people going on vacation with their AP and I'm only going to visit my parents in my country!

 

I don't want to trigger a ban but also want to (desperately) see my Father!

[Roel 7,193]

Only people that are 100% always admitted to the US, are US citizen.

Even with AP  - they can deny you entry. 

 

Honestly? With your situation and one AOS denial on record, I wouldn't risk it...

Edited May 23, 2018 by Roel

[Starkilla09 366]

24 minutes ago, e_xterrixx said:

Hi Guys,

 

Hoping someone can shed more light on this. I came on an F1 (completed it without problems or overstays and got OPT EAD), got married to USC and started AOS. First AOS was denied in June 2016, second AOS application is still pending. I just received my renewal EAD and AP documents and intending to travel in end of Aug-Sept. How do I know if I've overstayed my status or done anything (trigger a ban) that warrants additional scrutiny on my way back? I spoke to my attorney yesterday and he said I have not based on his calculations and you will only trigger a ban if you've overstayed 6months - 1year. Is this correct? Can they ban you even though married to a USC?. I read about people going on vacation with their AP and I'm only going to visit my parents in my country!

 

I don't want to trigger a ban but also want to (desperately) see my Father!

The 3 to 10 year bars only trigger is you overstayed by more than 6 months or 1 year respectively. Now with that being said even if you did overstay by 20 years it doesn’t matter anymore. The Bureau of Immigration Appeals finally ruled in 2012 (Matter of Arrabally and Yerrabelly) putting an end to this. As of that date travel with advance parole is no longer considered a “departure” from the U.S. and in essence can no longer trigger a bar after leaving the U.S. briefly. Before then leaving even on AP was considered a departure therefore triggering any unlawful presence the alien accumulated. With that being said parole is not admission and is at the sole discretion of a CBP officer so it carries a small risk, however; provided you don’t have any other inadmissibilities such as criminal ones you should be fine. Many on this forum have used AP in similar situations since then and returned just fine after a few questions. If you really have to travel go ahead you won’t be the first. By the way 1 girl here travelled after overstaying for 7 years on a tourist visa and returned. All she was asked were a few questions and paroled in. 

Edited May 23, 2018 by Starkilla09

[geowrian 22,338]

Only USCs are guaranteed entry.

Being married to a USC does not affect whether you get a bar upon exit or not.

Exit with a valid AP will not trigger a bar due to unlawful presence.

Bars start at 180 days of unlawful presence.

usually F-1 applicants are admitted as D/S, so you would not start accruing unlawful presence until they have determined that you are in the US unlawfully.

A pending AOS applications tolls the unlawful presence accrued (so you don’t get more while it’s pending).

[Jojo92122 1,924]

With AP, an overstay is irrelevant.  Plenty of people with overstays have successfully used AP to visit and return to the US to continue their AOS.

 

Marriage to a USC does not prevent someone from getting a ban.  Plenty of spouses of USC have bans.

The only reason you could end up be refused entering the US with AP is 1) your AOS is denied while you are out of the country, or 2) you do something that makes you ineligible to use AP - i.e., commit a crime while outside the US with AP.

[geowrian 22,338]

1 minute ago, Jojo92122 said:

The only reason you could end up be refused entering the US with AP is 1) your AOS is denied while you are out of the country, or 2) you do something that makes you ineligible to use AP - i.e., commit a crime while outside the US with AP.

Or 3) they discover a reason why AP was issued in error.

[azblk 338]

2 hours ago, geowrian said:

Or 3) they discover a reason why AP was issued in error.

How can AP be issued in error?

[geowrian 22,338]

1 hour ago, azblk said:

How can AP be issued in error?

Mistakes happen.

Or if the applicant did not disclose information that wild have resulted in a refusal, and CBP discovers it.

[azblk 338]

10 minutes ago, geowrian said:

Mistakes happen.

Or if the applicant did not disclose information that wild have resulted in a refusal, and CBP discovers it.

Doesnt everyone who has pending AOS qualify for AP? what reasons would lead a refusal? The only time i have heard of AP being denied is to people who had dual intent visas and left country while AP was pending. The USCIS took the view that they abandoned their AP petitions.

[Teemo 252]

45 minutes ago, azblk said:

Doesnt everyone who has pending AOS qualify for AP? what reasons would lead a refusal? The only time i have heard of AP being denied is to people who had dual intent visas and left country while AP was pending. The USCIS took the view that they abandoned their AP petitions.

No. They run an FBI background check on you as a precursor to issuing AP so there are a range of reasons why they would not grant AP. 

 

5 hours ago, e_xterrixx said:

I spoke to my attorney yesterday and he said I have not based on his calculations and you will only trigger a ban if you've overstayed 6months - 1year. Is this correct? Can they ban you even though married to a USC?. I read about people going on vacation with their AP and I'm only going to visit my parents in my country!

I am so so so sick of lawyers taking the most conservative route possible and advising all their clients who have overstayed not to travel on AP. They are stuck in a pre-2012 world. Post Matter of Arabally, which has become settled law, leaving with AP means you are not "departing" and therefore the ban does not come into effect. Virtually all CBP officers know this now, especially at the top 25 port of entries. Thousands of overstays use AP everyday with no problems.

 

Having said that, only US Citizens are guaranteed entry. CBP will still do their customary inspection of you, but the overstay will not have any effect whatsoever on your re-entry. This is settled law that has been effected 10s of thousands of times in the past 5 years. Lawyers who tell you otherwise are sticking to what they learned in law school and not evolving with the times. I feel so sorry for the people who do not even apply for AP or use AP because they are afraid the overstay will trigger a ban. Shame on those lawyers for fearmongering

[azblk 338]

5 minutes ago, Teemo said:

No. They run an FBI background check on you as a precursor to issuing AP so there are a range of reasons why they would not grant AP. 

 

 

What are those reasons? I cant seem to find anything about it.

[Teemo 252]

17 minutes ago, azblk said:

What are those reasons? I cant seem to find anything about it.

Well if your background check pulls up something that makes you inadmissable, like a crime, or an existing removal (deportation) order, or you have no right to apply for an I-485 (for example your current marriage is not valid because because your pending divorce is not final) , or they see you claimed to be a US citizen to get a benefit such as voting or welfare, or it's obvious you are committing marriage fraud, or you are on the terrorist watchlist or have suspected ties to terrorists, or anything else that would make you a national security or public safety threat or obviously makes your I-485 invalid or very likely to be denied. 

Edited May 23, 2018 by Teemo

[azblk 338]

10 minutes ago, Teemo said:

Well if your background check pulls up something that makes you inadmissable, like a crime, or an existing removal (deportation) order, or you have no right to apply for an I-485 (for example your current marriage is not valid because because your pending divorce is not final) , or they see you claimed to be a US citizen to get a benefit such as voting or welfare, or it's obvious you are committing marriage fraud, or you are on the terrorist watchlist or have suspected ties to terrorists, or anything else that would make you a national security or public safety threat or obviously makes your I-485 invalid or very likely to be denied. 

I dont want to hijack the OPs thread so I will start another one. Your answer however doesn't not make sense.

[Teemo 252]

6 minutes ago, azblk said:

I dont want to hijack the OPs thread so I will start another one. Your answer however doesn't not make sense.

How so? How else would you expect them to use a background check? 

Edited May 23, 2018 by Teemo

[e_xterrixx 32]

Thanks everyone! I appreciate all the responses. I will let you know if I go and come back without any hassles