Sent three cert letters to USCIS with copy of I-94 ,lockbox receipt. No reply not reply.

[geowrian 22,337]

I haven't seen anything indicating that abandoning the I-485 retroactively counts unlawful presence. There may be an exception for a frivolous claim, but it doesn't sound like that happened her.

That said, filing for AOS only "tolls" unlawful presence. I wonder if USCIS believe the application was received after the I-94 expired. That would explain the "arrived late" aspect, making her unlawful presence now be an issue for an ESTA or any other NIV.

For the record, the terms the AFM, FAM, and USCIS policy manual generally use for these circumstances is "untimely filed" or "not timely filed". Maybe that will help somebody find something specific.

 

7 minutes ago, windboater said:

 My understanding is that you must submit you application to the Texas locked box before the expiration of your Visa, in this case a 90 day tourist Visa. Vanessa application arrived either on the last day or the dry prior to the 90 days expiring.

Did you count the days exactly (not 3 months....exactly 90 days starting from the day of entry)? Do you have evidence of when it arrived at the lockbox?

 

7 minutes ago, windboater said:

Even of she had filed it a day late (which I see no evident of) has USCIS no compassion for a citizen be with his wife? 

USCIS is bound by laws and policies. There isn't an opportunity to make an exception.

Although I'm a little confused...you are with your wife right now. You weren't even separated.

[Crazy Cat 41,884]

7 minutes ago, geowrian said:

Did you count the days exactly (not 3 months....exactly 90 days starting from the day of entry)? Do you have evidence of when it arrived at the lockbox?

What is the significance of whether AOS was filed either before or after expiration of the I-94?

Edited June 29, 2019 by missileman

[geowrian 22,337]

4 minutes ago, missileman said:

What is the significance of whether AOS was filed either before or after expiration of the I-94?

If it was filed after the I-94 expired, there is unlawful presence accumulated. Any unlawful presence is an automatic & permanent ineligibility for an ESTA. Otherwise (since it's under 180 days) it's just a negative factor for any other NIV.

[Crazy Cat 41,884]

2 minutes ago, geowrian said:

If it was filed after the I-94 expired, there is unlawful presence accumulated. Any unlawful presence is an automatic & permanent ineligibility for an ESTA. Otherwise (since it's under 180 days) it's just a negative factor for any other NIV.

OK.  Thanks......that's what I thought. Filing after expiration of the I-94 could affect ESTA, but it would not affect adjustment of status (if it had not been abandoned).

[geowrian 22,337]

Just now, missileman said:

OK.  Thanks......that's what I thought. Filing after expiration of the I-94 could affect ESTA, but it would not affect adjustment of status (if it had not been abandoned).

As the spouse of a USC, correct. The overstay would not haven been an issue for the AOS application (had they completed the process).

[HRQX 4,145]

3 hours ago, carmel34 said:

This means that her "authorized stay" while waiting for AOS adjudication was retroactively revoked.

 

3 hours ago, missileman said:

I tend to think that is exactly correct......although I've not yet found anything which says that is their policy.......but it does make sense that it would create a "late AOS filing".....

It's not an issue when applying for a visa at an embassy or consulate: https://fam.state.gov/fam/09FAM/09FAM030211.html#M302_11_3

Quote

b. (U) DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:

.

.

.

.

(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 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);

 

20 hours ago, geowrian said:

First option would be apply for the ESTA and find out what it says.

The issue comes with the following ESTA question: "Have you ever stayed in the United States longer than the admission period granted to you by the U.S. government?" Pending AOS is not an acceptable status for a "No" answer.

Edited June 29, 2019 by HRQX

[Crazy Cat 41,884]

3 minutes ago, HRQX said:

It's not an issue when applying for a visa at an embassy or consulate: https://fam.state.gov/fam/09FAM/09FAM030211.html#M302_11_3

Thanks.  That's what I have been looking for.

[windboater 0]

On 6/29/2019 at 1:12 PM, geowrian said:

I haven't seen anything indicating that abandoning the I-485 retroactively counts unlawful presence. There may be an exception for a frivolous claim, but it doesn't sound like that happened her.

That said, filing for AOS only "tolls" unlawful presence. I wonder if USCIS believe the application was received after the I-94 expired. That would explain the "arrived late" aspect, making her unlawful presence now be an issue for an ESTA or any other NIV.

For the record, the terms the AFM, FAM, and USCIS policy manual generally use for these circumstances is "untimely filed" or "not timely filed". Maybe that will help somebody find something specific.

 

Did you count the days exactly (not 3 months....exactly 90 days starting from the day of entry)? Do you have evidence of when it arrived at the lockbox?

 

USCIS is bound by laws and policies. There isn't an opportunity to make an exception.

Although I'm a little confused...you are with your wife right now. You weren't even separated.

I joined her in Taiwan as soon as I could close up our house in Florida.  I became a legal resident of Taiwan. There have been times when we had to be apart for several months at a time do to several  cancer treatments in the US and Canada. The separations have been very stressful on her and me but our marriage has survived.  I love Taiwan but the housing situation is as expensive as Manhattan.  I realize I have to leave if we ever expect to buy a house of our own. One of the most costly housing markets in Asia. After Vanessa finishes her University degree in Colombia, hopefully the extream the real estate speculate in Taiwan will subsided some and we can return to Taiwan. I'm in Hollywood at the present time to repair damage from my cancer treatments. We are both in the process of booking flights to Colombia. Hopefully we will be together in one or two weeks.

[windboater 0]

1 minute ago, windboater said:

I joined her in Taiwan as soon as I could close up our house in Florida.  I became a legal resident of Taiwan. There have been times when we had to be apart for several months at a time do to several  cancer treatments in the US and Canada. The separations have been very stressful on her and me but our marriage has survived.  I love Taiwan but the housing situation is as expensive as Manhattan.  I realize I have to leave if we ever expect to buy a house of our own. One of the most costly housing markets in Asia. After Vanessa finishes her University degree in Colombia, hopefully the extream the real estate speculate in Taiwan will subsided some and we can return to Taiwan. I'm in Hollywood at the present time to repair damage from my cancer treatments. We are both in the process of booking flights to Colombia. Hopefully we will be together in one or two weeks.

Sorry as much.as I talked I only answered one question. Not use to the system yet, I only saw the last part of your message. 

I used and on line calculator to counter the days.  Evidence yes have her I-94 and the lockes box receipt supplied.by the attorney's office. Remember our attorney was next to death certainly hyped up on strong pain killers. She could have made a mistakes who could blame her. The evidence shows things arrive on time.

[windboater 0]

On 6/29/2019 at 1:12 PM, geowrian said:

I haven't seen anything indicating that abandoning the I-485 retroactively counts unlawful presence. There may be an exception for a frivolous claim, but it doesn't sound like that happened her.

That said, filing for AOS only "tolls" unlawful presence. I wonder if USCIS believe the application was received after the I-94 expired. That would explain the "arrived late" aspect, making her unlawful presence now be an issue for an ESTA or any other NIV.

For the record, the terms the AFM, FAM, and USCIS policy manual generally use for these circumstances is "untimely filed" or "not timely filed". Maybe that will help somebody find something specific.

 

Did you count the days exactly (not 3 months....exactly 90 days starting from the day of entry)? Do you have evidence of when it arrived at the lockbox?

 

USCIS is bound by laws and policies. There isn't an opportunity to make an exception.

Although I'm a little confused...you are with your wife right now. You weren't even separated.

Thanks Geowrian yes I also think USCIS believes the application was later but the paperwork I sent them clearly shows they are mistaken. I sent then copies of the I94 and the lockbox receipt from the attorney. Unfortunately they never responded. I sent this items three time via certified mail. I have all three receipts.

[windboater 0]

Just now, windboater said:

Thanks Geowrian yes I also think USCIS believes the application was later but the paperwork I sent them clearly shows they are mistaken. I sent then copies of the I94 and the lockbox receipt from the attorney. Unfortunately they never responded. I sent this items three time via certified mail. I have all three receipts. I wonder if a freedom of information search might provide some clairity.

 

[windboater 0]

On 6/29/2019 at 1:26 PM, geowrian said:

If it was filed after the I-94 expired, there is unlawful presence accumulated. Any unlawful presence is an automatic & permanent ineligibility for an ESTA. Otherwise (since it's under 180 days) it's just a negative factor for any other NIV.

This ignores the fact that after the i-485 was received, she received her appointment for the biometric appointment, her work permit, her ss card and a date for her interview, all serious violation of US immigration law. This is probably why they are ignoring our evedence and requests for explanation. 

[windboater 0]

Just now, windboater said:

This ignores the fact that after the i-485 was received, she received her appointment for the biometric appointment, her work permit, her ss card and a date for her interview, all serious violation of US immigration law. This is probably why they are ignoring our evedence and requests for explanation. 

Violations that is,  if the I485 was late or improper in any way.

[geowrian 22,337]

16 minutes ago, windboater said:

This ignores the fact that after the i-485 was received, she received her appointment for the biometric appointment, her work permit, her ss card and a date for her interview, all serious violation of US immigration law. This is probably why they are ignoring our evedence and requests for explanation. 

15 minutes ago, windboater said:

Violations that is,  if the I485 was late or improper in any way.

No. The reason why all that occurred is that there is no bar to AOS as the spouse of a US citizen for overstaying. One could be out of status for 5 years then file AOS if married to a US citizen. The "penalty"/consequence would only come into play if caught by ICE in the US or upon exit from the US w/o a green card or AP (Edit: the consequence being their potential ability to return).

 

Edited July 2, 2019 by geowrian

[windboater 0]

I'm really looking for guidance or even just a definitive answer to why this happened and how it can be resolved. Thanks for your reply. John