Applying for IR-1 Visa but Husband had been in the US

[xaxa56 3]

Hi, we are waiting for an answer on NOA1.  Has anyone process a CR-1 visa but your spouse had been in the US with a TPS status, that was lost due to Family Emergency.  Apparently there is no illegall Presence and there will be no waiver.  But I'm  concern about the interview process at the consulate.  He has all his TPS cards to proof that he was there legally.  Has anyone had an interview and had the same situation? please give me some feed back.

 

Thanks

[Chalanero21 28]

I would check with an experience immigration attorney on that one. I might be wrong but I understand that even if the person has TPS if the person accumulated unlawful presence before the TPS it will make him or her inadvisable therefore a waiver or a reenter with an advance parole is needed. What most TPS applicants are doing while their TPS is still valid and they have a family member that can petition for them is to ask for a reentry permit to travel outside the US then when they come back they are legally admitted to adjust for status therefore can become residents as soon as I130 is approved and dont need to go to consulate and apply for a waiver. 

Now in your case I understant that you said TPS was lost? meaning that the person did not renovated it? 

 Here is some information that might be useful and give you a better idea than me.

 

9 FAM 302.11-3(B)(1) (U) Interpretation of “Unlawful Presence”
(CT:VISA-404; 07-20-2017)
a. (U) INA 212(a)(9)(B)(ii) provides the following construction for the term "unlawful
presence": “… the alien is present in the United States after the expiration of the
period of stay authorized by the [Secretary of Homeland Security] or is present in the
United States without being admitted or paroled." Under this construction, an alien
would generally be unlawfully present if he or she entered the United States without
inspection, or stayed beyond the date specified on the Form I-94, Arrival and
Departure Record, or was found by the Department of Homeland Security (DHS) or an
immigration judge (IJ) or the Board of Immigration Appeals (BIA) to have violated
status. However, even aliens fitting into one of these categories may be deemed to
be in a period of authorized stay in certain circumstances, as noted below.
b. (U) DHS has interpreted "period of stay authorized by the Secretary of Homeland
Security" as used in this context to include:
(1) (U) For aliens inspected and admitted or paroled until a date specified on the
Form I-94 or any extension, any period of presence in the United States up until
either:
(a) (U) The expiration of the Form I-94 (or any extension); or
(b) (U) A formal finding of a status violation made by DHS, IJ, or the BIA in the
context of an application for an immigration benefit or in removal
proceedings, whichever comes first.
(2) (U) 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;
(3) (U) For aliens granted "voluntary departure" (VD), pursuant to INA 240B, the
period of time between the granting of VD and the date for their departure, if the
alien departs according to the terms of the grant of VD;
(4) (U) For aliens who have applied for extension of stay or change of nonimmigrant
classification and who have remained in the United States after expiration of the
Form I-94 while awaiting DHS's decision, the entire period of the pendency of the
application, provided that:
(a) (U) The alien does not work unlawfully while the application is pending and
did not unlawfully work prior to filing the application; and
(b) (U) The alien did not otherwise fail to maintain his or her status prior to the
filing of the application (unless the application is approved at the discretion
of USCIS and the failure to maintain status is solely a result of the expiration
of the Form I-94), and further provided either:
(i) (U) That the application was subsequently approved; or
(ii) (U) If the application was denied or the alien departed while the
application was still pending, that the application was timely filed and
nonfrivolous.
(5) (U) 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
3/6/2018 9 FAM 302.11 (U) INELIGIBILITY BASED ON PREVIOUS REMOVAL AND UNLAWFUL PRESENCE IN THE UNITED STATES - INA 212(A)(9)
https://fam.state.gov/FAM/09FAM/09FAM030211.html 2/3
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);
(6) (U) For aliens covered by Temporary Protected Status (TPS), the period after TPS
went into effect and prior to its expiration; and
(7) (U) For aliens granted deferred action, the period during which deferred action is
authorized.
(8) (U) The foregoing above list is not exhaustive.
c. (U) You should note that any unauthorized presence accrued prior to the filing of an
application for adjustment of status, or the granting of voluntary departure, or the
date a prima facie TPS application is filed (if the application is approved) is not
"cured" by the subsequent period of authorized stay that result from the approval of
these applications. Additional unauthorized presence will resume accruing after these
authorized periods lapse.
d. (U) 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 DHS, IJ, or the BIA finds a status violation in the context of a request for an
immigration benefit or in the course of removal proceedings. This finding of status
violation by the DHS, an IJ, or the BIA will cause a period of "unlawful presence" to
begin. In DOS 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 (i.e.,
the date the finding was published /communicated. For example, if an applicant
presents a letter from DHS dated December 1, 2008, that says the applicant was out
of status starting on May 28, 2001, the applicant began to accrue unlawful presence
as of December 1, 2008, not May 28, 2001.
e. (U) A finding of status violation by DHS, an IJ, or the BIA is not required in the case
of an illegal entrant or an alien who admitted to a date certain overstays the specified
period of stay indicated on their Form I-94. If you find that an alien entered without
inspection and admission or stayed beyond the date on the Form I-94, and remained
in the United States more than 180 days after entering without admission or after the
expiration of his or her Form I-94, a determination of inadmissibility under INA 212(a)
(9)(B) would be warranted (unless some exception to INA 212(a)(9)(B) applies in the
particular case).
f. (U) When calculating unlawful presence, the actual date that the Form I-94 (or any
extension) expires is considered authorized and is not counted. In addition, the date
of departure from the United States is not counted as unlawful presence.
9 FAM 302.11-3(B)(2) (U) Time Frames
(CT:VISA-347; 04-18-2017)
a. (U) In General:
(1) (U) INA 212(a)(9)(B) went into effect on April 1, 1997, and the statute is not
retroactive. Periods prior to April 1, 1997, therefore, cannot be considered when
calculating the period of unlawful presence accrued for purposes of 212(a)(9)(B).
(2) (U) Neither of the INA 212(a)(9)(B)(i)(I) (180+ days but less than a year) or INA
212(a)(9)(B)(i)(II) (one year+) time frames is cumulative across trips. The
3/6/2018 9 FAM 302.11 (U) INELIGIBILITY BASED ON PREVIOUS REMOVAL AND UNLAWFUL PRESENCE IN THE UNITED STATES - INA 212(A)(9)
https://fam.state.gov/FAM/09FAM/09FAM030211.html 3/3
unlawful presence must occur in the same trip to the United States, and periods
of unlawful presence accrued on separate trips cannot be added together.
However, separate periods of unlawful presence occurring during the same
overall period of stay (e.g., unlawful presence before and after a period of
voluntary departure) should be added together to calculate total unlawful
presence during a particular stay.
(3) (U) Both provisions are triggered by departure from the United States, and the
bar against reentry applies from the date of departure.
b. (U) INA 212(a)(9)(B)(i) Departure Prior to Commenced Proceedings
Required: 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 (1) unlawfully present for a period of more than 180 days but
less than a year and (2) was placed in proceedings before the alien's departure (3)
those proceedings concluded without a removal, the alien would not be inadmissible
under the three-year bar of INA 212(a)(9)(B)(i)(I).
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.)