Visa Overstay Immigration Laywer

[geowrian 22,337]

3 hours ago, Dee elle said:

K1 gives you legal stay status for 90 days... if the AOS is then  denied, my thinking is that the overstay counting begins on day 91... again.. I am hoping I am wrong here and am looking for others who do know clearly to let me know!! 

A properly filed I-485 grants a period of authorized stay. This is not legal status, but unlawful presence does not accrue while you have a period of authorized stay. Existing unlawful presence, if any, is tolled in the mean time.

Unless the I-485 was improperly filed or something, my understanding based on the AFM and FAM is that the unlawful presence would not be retroactively counted. It only accrues while you have unlawful presence, which doesn't apply when you have a period of authorized stay. I can try to pull up the memo stating this...

Found it: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF (See the section on Aliens Present in Unlawful Status Who Do Not Accrue Unlawful Presence, which has a section for AOS applicants).

Edited July 8, 2018 by geowrian

[Boiler 45,537]

6 minutes ago, geowrian said:

A properly filed I-485 grants a period of authorized stay. This is not legal status, but unlawful presence does not accrue while you have a period of authorized stay. Existing unlawful presence, if any, is tolled in the mean time.

Unless the I-485 was improperly filed or something, my understanding based on the AFM and FAM is that the unlawful presence would not be retroactively counted. It only accrues while you have unlawful presence, which doesn't apply when you have a period of authorized stay. I can try to pull up the memo stating this...

Found it: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF (See the section on Aliens Present in Unlawful Status Who Do Not Accrue Unlawful Presence, which has a section for AOS applicants).

My understanding why the Lawyer said what the Lawyer said and I have seen this discussed elsewhere over the years is:

 

1. The application was abandoned as the OP left the US.
2. The issue will be decided by the CO at a Consulate overseas.

The old USCIS vs DoS issue.

 

Like any admissability you will never really know what will hapen until the interview, seen situation go both ways, well as usual have read about cases going both ways, somethings no doubt get corrupted.

 

Anyway step one let us look at the dates.

 

[gareths 3]

Entered the US on K1 Visa:                                      28th July 2016

Married in US:                                                            28th August 2016

Sent AOS Package with EAD and Travel Parole:  3rd October 2016 

Received Work EAD:                                                 10th December 2016

Started work:                                                              Jan 1st---- December 28th 2017 <<<< Expired 

Had AOS interview:                                                   19th July 2017

30 Days to get RFE back/Sent that on:                  24th July 2017

Moved Apartment:                                                    8th August 2017

Wife tried to changed of Address online:                  12th August 2017 <<<

Email received that COA request could not be completed: 4th September 2017 <<<<<

 

(Followed the link on the email to change address again, but we got an error that said a request to change address has already been submitted. So we then proceeded to call the Customer Service Center because we were confused. We were confused because 1 we got an notification stating address was not changed. 2 because we received a notice for my work EAD renewal to our new address and was wondering why.) The representative said address must have changed since we had received that EAD renewal correspondence. 

 

Notified on app of Denial:                                       26th October 2017

In between this point and speaking with the Officer below on 8th March 2018. We called numerous times they all said wait for the letter, I even went into the Local USCIS office and they said just wait for the letter. 

 

Called and spoke to an officer about no denial letter: 8th March 2018 <<< he said it was because the address was not changed he changed it over the phone.

Finally got a copy of Denial Letter:                        14th March 2018 

Left the United States:                                             27th March 2018

  

 

[Crazy Cat 41,893]

Where is the overstay?

Edited July 8, 2018 by missileman

[gareths 3]

4 minutes ago, missileman said:

Where is the overstay?

I was told Overstay will be from 91st day because of Denial?

[Crazy Cat 41,893]

This attorney disagrees if I am reading it correctly: https://www.avvo.com/legal-answers/what-happens-if-my-aos-gets-denied--3564752.html

 

He says unlawful presence starts day after denial.....

 

I know I'm coming in to the conversation late.  Please pardon me .

[Amadia 711]

It should not be the 91st day since you have 90 days with which to marry on a K1. It would be the date stated in your denial letter.

[Visitor User 253]

Doesn't the 3/10 year ban only applies if you leave the U.S?

[geowrian 22,337]

1 minute ago, Visitor User said:

Doesn't the 3/10 year ban only applies if you leave the U.S?

Yes...

13 hours ago, gareths said:

I left on 27th of March 2018

4 hours ago, gareths said:

Entered the US on K1 Visa:                                      28th July 2016

...

Left the United States:                                             27th March 2018

 

[Boiler 45,537]

OK what was the date of the denial, 26th October? Trying to see best and worst case.

[Visitor User 253]

Visa Overstay is forgiven anyway when the beneficiary marries a USC spouse right? It does not even matter how long the Overstay was?

[geowrian 22,337]

8 minutes ago, Visitor User said:

Visa Overstay is forgiven anyway when the beneficiary marries a USC spouse right? It does not even matter how long the Overstay was?

For AOS, yes. The bar is upon exit.

For a visa abroad, no.

[gareths 3]

4 hours ago, geowrian said:

For AOS, yes. The bar is upon exit.

For a visa abroad, no.

So its possible a 10 year ban and also possible no ban? 

[EmmNM 179]

13 hours ago, Boiler said:

OK what was the date of the denial, 26th October? Trying to see best and worst case.

Answer this question.

 

6 hours ago, gareths said:

So its possible a 10 year ban and also possible no ban? 

 

Edited July 9, 2018 by EmmNM

[gazman 0]

1 minute ago, EmmNM said:

Answer this question.

 

 

Oh sorry, yes thats the denial date.