I-601 and overstay - any leniency for those who were waiting on forms?

[HRQX 4,145]

4 hours ago, Boiler said:

I forget the precise wording and was hoping HQRX would come along and paste it.

8 CFR § 103.2(a)(7)(ii):

Quote

A benefit request which is rejected will not retain a filing date. A benefit request will be rejected if it is not:

(A) Signed with valid signature;

(B) Executed;

(C) Filed in compliance with the regulations governing the filing of the specific application, petition, form, or request; and

(D) Submitted with the correct fee(s). If a check or other financial instrument used to pay a fee is returned as unpayable because of insufficient funds, USCIS will resubmit the payment to the remitter institution one time. If the instrument used to pay a fee is returned as unpayable a second time, the filing may be rejected. Financial instruments returned as unpayable for a reason other than insufficient funds will not be redeposited. If a check or other financial instrument used to pay a fee is dated more than one year before the request is received, the payment and request may be rejected.

 

Thus there was no period of authorized stay from the rejected form; the I-485 was not "properly filed": https://fam.state.gov/fam/09FAM/09FAM030211.html

Edited September 11, 2021 by HRQX

[arken 4,197]

Yeah, you have more than 1 year of overstay (Apr 17 - Jul 18), the 10 yr bar is likely imposed at the interview. Seeking an attorney is a good idea.

 

 

[HRQX 4,145]

7 hours ago, saksnoot said:

Even if you had filed the correct version of form I-485 afterward and the filing was accepted, your I-485 case would have likely been adjudicated and denied because you would have filed while overstaying and thus been found inadmissible and barred for 3 years at least, unless you filed I-601 with I-485.

No, if the I-485 was properly filed (*which isn't the case here; just reiterating that fact) then the adjustment bars you are alluding to are not applicable to "Immediate Relatives" https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-8

Certain adjustment bars do not apply to an immediate relative, including the spouse or child (unmarried and under 21 years old) of a U.S. citizen, and the parent of a U.S. citizen older than 21. ^[2] 

 

An adjustment applicant applying as an immediate relative may be eligible to adjust status even if:

• The applicant is now employed or has ever been employed in the United States without authorization;

• The applicant is not in lawful immigration status on the date he or she files the adjustment application;

• The applicant has ever failed to continuously maintain a lawful status since entry into the United States;

• The applicant was last admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) as a visitor under the Guam or CNMI Visa Waiver Program and is not a Canadian citizen;

• The applicant was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program; or

• The applicant has ever violated the terms of his or her nonimmigrant status.

Also if the I-485 was properly filed then the time between the proper file date and the decision/result (i.e. approval, denial, abandonment, etc.) would be a "period of stay authorized by the Secretary of Homeland Security" so that time period does not count toward unlawful presence. https://fam.state.gov/fam/09FAM/09FAM030211.html Interpretation of "Unlawful Presence"

Edited September 12, 2021 by HRQX

[ws1889 19]

11 hours ago, African Zealot said:

Honestly it appears pretty clear cut to me. The incorrect outdated I-485 is more of a red herring. You will need a waiver, my advice is to get an attorney with experience in that process for the waiver if you can afford it. 

 

There is a is discretionary legal procedure called  nunc pro tunc which is sometimes used to cure some problems like yours. I have seen/read it applied in immigration. In your case if you had filed a valid form after the previous was rejected, the receipt date could be recorded as the date of the first one in which case your overstay ban would reduce to 3 years instead of ten years. It is moot however because you never filed another form to correct the outdated form.

 

 

Good luck and I hope you get a favorable result.

 

 

Hi, the nunc pro tunc is more or less what I was referring to - I guess the fact that we did not resubmit nulls this argument, as you've mentioned. Thank you for providing this.

[ws1889 19]

11 hours ago, saksnoot said:

Not a lawyer myself, but I think you’ll need a waiver and/or an attorney.

 

The key to me here is actually that you didn’t file I-485 before your overstay on your permission to be in the US. A pending I-130 doesn’t give you any right to stay in the US but a pending I-485 does.

 

Thus, even with your I-130 filed, when your permission to stay in the US expired, you began your period of overstay. Even if you had filed the correct version of form I-485 afterward and the filing was accepted, your I-485 case would have likely been adjudicated and denied because you would have filed while overstaying and thus been found inadmissible and barred for 3 years at least, unless you filed I-601 with I-485. 

 

All this said, I think your situation is understandable. I’d get an attorney and see what can be done now to remedy the situation at your interview to maybe get approved. Don‘t be surprised if you’re denied a visa at your interview. You’ll likely need to file I-601, and it seems you have an understandable situation, so that should allow you to proceed with your greencard afterward. Looks like that takes about 6 months on average. Hopefully, if it comes to that, this is a delay you can live with. 

Hello,

 

Thank you for your thoughtful answer. It sounds like your assessment is pretty accurate, so we'll begin preparing the I-601 now and have it ready to submit after the interview. Thanks again

[ws1889 19]

5 hours ago, HRQX said:

8 CFR § 103.2(a)(7)(ii):

 

Thus there was no period of authorized stay from the rejected form; the I-485 was not "properly filed": https://fam.state.gov/fam/09FAM/09FAM030211.html

Hi,

Thank you for replying - this is the concise legalese definition I was looking for.

 

I did some research using a couple of law sourcebooks and surprisingly, if I had been the subject to a deportation order and left willingly on my own at my own expense, I would not be subject to the ban (granted, if my stay was less than one year). Thought I would share this interesting fact - hard to believe that's true!

 

"Interestingly, if the foreign national was placed into removal proceedings and then decided to leave, or accepted an order of voluntary departure that would allow him or her to leave at his or her own expense within a given time frame, then s/he would not be subject to the three-year bar."

[saksnoot 31]

9 hours ago, HRQX said:

No, if the I-485 was properly filed (*which isn't the case here; just reiterating that fact) then the adjustment bars you are alluding to are not applicable to "Immediate Relatives" https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-8

Certain adjustment bars do not apply to an immediate relative, including the spouse or child (unmarried and under 21 years old) of a U.S. citizen, and the parent of a U.S. citizen older than 21. ^[2] 

 

An adjustment applicant applying as an immediate relative may be eligible to adjust status even if:

• The applicant is now employed or has ever been employed in the United States without authorization;

• The applicant is not in lawful immigration status on the date he or she files the adjustment application;

• The applicant has ever failed to continuously maintain a lawful status since entry into the United States;

• The applicant was last admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) as a visitor under the Guam or CNMI Visa Waiver Program and is not a Canadian citizen;

• The applicant was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program; or

• The applicant has ever violated the terms of his or her nonimmigrant status.

Also if the I-485 was properly filed then the time between the proper file date and the decision/result (i.e. approval, denial, abandonment, etc.) would be a "period of stay authorized by the Secretary of Homeland Security" so that time period does not count toward unlawful presence. https://fam.state.gov/fam/09FAM/09FAM030211.html Interpretation of "Unlawful Presence"

You’re right. For some reason, I thought OP’s case involved an overstaying on K1, which I thought would bar adjustment after 90 days. 

[HRQX 4,145]

8 hours ago, saksnoot said:

For some reason, I thought OP’s case involved an overstaying on K1, which I thought would bar adjustment after 90 days.

In the case of K-1 once the K-1 marries the US citizen then the adjustment bars I referenced above do not apply:

If the marriage between K-1 and US citizen occurs after I-94 expires then a I-130 petition is also needed for the AOS process:

 

Edited September 12, 2021 by HRQX