"Unlawful presence"

[Sianaks 1]

We finally got our EAD and AP!

I am needing t leave the country because my mother was killed and I need to go back. So we're wondering about this sentence about unlawful presence:

"Unlawful Presence. If you leave the US after being unlawfully present in the US, you may be barred from admission even if you obtained advance parole. If you were unlawfully present in the US for more than 180 days but less than one year and you leave the US voluntarily before the start of removal proceedings, you are inadmissible for 3 years; if you were unlawfully present for 1 year or more, you are inadmissible for 10 years"

 

We were abroad when Covid-19 hit and we had to get back to the US so I came in on a 2 month tourist visa. Timeline as follows:

• 2 month visitor visa: June 21 2020 - Aug 21 2020

• We got married here in the US in Sept 2020

• I-130/I-485 received by USCIS in April 2021

• EAD/AP arrived November 19th 2021. Still waiting for interview date.

 

At what point was she no longer "unlawfully present"? From the time that her visitor visa expired until:

1) when we got married in Sept 2020?

2) when USCIS accepted our application?

3) now when she received EAD/AP?

4) or still unlawfully present while waiting for interview date?

 

 

Thank you for your help.

[SalishSea 18,133]

25 minutes ago, Sianaks said:

We finally got our EAD and AP!

I am needing t leave the country because my mother was killed and I need to go back. So we're wondering about this sentence about unlawful presence:

"Unlawful Presence. If you leave the US after being unlawfully present in the US, you may be barred from admission even if you obtained advance parole. If you were unlawfully present in the US for more than 180 days but less than one year and you leave the US voluntarily before the start of removal proceedings, you are inadmissible for 3 years; if you were unlawfully present for 1 year or more, you are inadmissible for 10 years"

 

We were abroad when Covid-19 hit and we had to get back to the US so I came in on a 2 month tourist visa. Timeline as follows:

• 2 month visitor visa: June 21 2020 - Aug 21 2020

• We got married here in the US in Sept 2020

• I-130/I-485 received by USCIS in April 2021

• EAD/AP arrived November 19th 2021. Still waiting for interview date.

 

At what point was she no longer "unlawfully present"? From the time that her visitor visa expired until:

1) when we got married in Sept 2020?

2) when USCIS accepted our application?

3) now when she received EAD/AP?

4) or still unlawfully present while waiting for interview date?

 

 

Thank you for your help.

Omg, so sorry for your terrible loss.

 

With your AP and a pending AOS, you're in a period of authorized stay.  The AP allows you to be readmitted while your AOS is in process.

 

Best wishes.

[Sianaks 1]

2 hours ago, Jorgedig said:

Omg, so sorry for your terrible loss.

 

With your AP and a pending AOS, you're in a period of authorized stay.  The AP allows you to be readmitted while your AOS is in process.

 

Best wishes.

Thank you for your response.

 

So what I hear in your response is that I am in a period of "authorized stay". But does USCIS consider the time between my visa expiring and when they recieved my AOS packet (which is about 7 months) "unauthorized stay"?

[SalishSea 18,133]

Just now, Sianaks said:

Thank you for your response.

 

So what I hear in your response is that I am in a period of "authorized stay". But does USCIS consider the time between my visa expiring and when they recieved my AOS packet (which is about 7 months) "unauthorized stay"?

Yes.  But if you are adjusting via marriage to a USC, there are no consequences.

[Sianaks 1]

36 minutes ago, Jorgedig said:

Yes.  But if you are adjusting via marriage to a USC, there are no consequences.

But there was a period of about 7 months, between my visa expiring and USCIS receiving my AOS packet, that I was out of status and didn't have authorized stay. Do those 7 months count as unauthorized stay? Or is what you're saying the 1 month between my visa expiring and me getting married is the period of unauthorized stay and so is less than 180 days?

[Rocio0010 5,635]

10 hours ago, Sianaks said:

Do those 7 months count as unauthorized stay? Or

Sorry for your loss. Yes. The “unauthorized stay” is between the expiration of your visa and your i-797 NOA from when USCIS received your application. However, this is forgiven because you’re married to a USC. 
My understanding is that you’re good to travel abroad and come back.

[Demise 1,337]

15 hours ago, Sianaks said:

We finally got our EAD and AP!

I am needing t leave the country because my mother was killed and I need to go back. So we're wondering about this sentence about unlawful presence:

"Unlawful Presence. If you leave the US after being unlawfully present in the US, you may be barred from admission even if you obtained advance parole. If you were unlawfully present in the US for more than 180 days but less than one year and you leave the US voluntarily before the start of removal proceedings, you are inadmissible for 3 years; if you were unlawfully present for 1 year or more, you are inadmissible for 10 years"

 

We were abroad when Covid-19 hit and we had to get back to the US so I came in on a 2 month tourist visa. Timeline as follows:

• 2 month visitor visa: June 21 2020 - Aug 21 2020

• We got married here in the US in Sept 2020

• I-130/I-485 received by USCIS in April 2021

• EAD/AP arrived November 19th 2021. Still waiting for interview date.

 

At what point was she no longer "unlawfully present"? From the time that her visitor visa expired until:

1) when we got married in Sept 2020?

2) when USCIS accepted our application?

3) now when she received EAD/AP?

4) or still unlawfully present while waiting for interview date?

 

 

Thank you for your help.

At the point where USCIS received the I-485, so you've been unlawfully present between August 22, 2020 and April 2021, more than 180 days but less than 1 year.

 

Note however that as per Matter of Arrabally (BIA, 2012), BIA ruled that travel on Advance Parole does not trigger the unlawful presence bars found in INA 212(a)(9)(B).

Edited November 21, 2021 by Demise

[Gee2021 44]

22 hours ago, Sianaks said:

We finally got our EAD and AP!

I am needing t leave the country because my mother was killed and I need to go back. So we're wondering about this sentence about unlawful presence:

"Unlawful Presence. If you leave the US after being unlawfully present in the US, you may be barred from admission even if you obtained advance parole. If you were unlawfully present in the US for more than 180 days but less than one year and you leave the US voluntarily before the start of removal proceedings, you are inadmissible for 3 years; if you were unlawfully present for 1 year or more, you are inadmissible for 10 years"

 

We were abroad when Covid-19 hit and we had to get back to the US so I came in on a 2 month tourist visa. Timeline as follows:

• 2 month visitor visa: June 21 2020 - Aug 21 2020

• We got married here in the US in Sept 2020

• I-130/I-485 received by USCIS in April 2021

• EAD/AP arrived November 19th 2021. Still waiting for interview date.

 

At what point was she no longer "unlawfully present"? From the time that her visitor visa expired until:

1) when we got married in Sept 2020?

2) when USCIS accepted our application?

3) now when she received EAD/AP?

4) or still unlawfully present while waiting for interview date?

 

 

Thank you for your help.

I'd consult an attorney if I were you just to be safe. Just like you said, she had 7 months of unlawful presence and haven't attended the interview yet for the adjustment of status. Some people adjusting their status think that it should fix everything but until the actual interview when they found out some bad news. So I guess the best way is to seek an advice from an attorney if you don't want to chance it.

[Timona 4,208]

34 minutes ago, Gee2021 said:

I'd consult an attorney if I were you just to be safe. Just like you said, she had 7 months of unlawful presence and haven't attended the interview yet for the adjustment of status. Some people adjusting their status think that it should fix everything but until the actual interview when they found out some bad news. So I guess the best way is to seek an advice from an attorney if you don't want to chance it.

 

OP is good to go. 

There are people who've overstayed in the US for years and just married USC and went in and out of US with AP without issues. No need to consult an attorney on this one. 

 

Search VJ here. There are a lot of successful stories. 

 

Two of my boys just came from abroad with AP, one this past Thursday. This one came on F-1 and his status expired long ago. He married USC and filed October of 2020. Got his AP combo in May or June and went to visit home country. The other came on B1/B2 in 2015 and overstayed. He too filed in October/ September 2020 and just came back from Mexico with AP.

 

Basically, you don't need an attorney for any small thing. 

[Rocio0010 5,635]

42 minutes ago, Gee2021 said:

Some people adjusting their status think that it should fix everything but until the actual interview when they found out some bad news.

By law, overstays are forgiven for spouses of USC. So there are no “bad news” in this case.

[Gee2021 44]

4 hours ago, ra0010 said:

By law, overstays are forgiven for spouses of USC. So there are no “bad news” in this case.

 

4 hours ago, ra0010 said:

By law, overstays are forgiven for spouses of USC. So there are no “bad news” in this case.

I disagree because I'm married to a USC but it does not automatically forgive me from my overstay because there's more complexity to my case. So it really all depends on each persons case and background. However, most overstayers should be fixed through marriage from a USC.
 

The facts is simple things would not need an attorney, and I agree with that. 
 

I guess the bottomline is we give our insights here, if the person feels very confident hearing about other people's experiences then I think it should be a positive thing. On the other hand, if someone is in doubt then it also won't  hurt to check and get a professional opinion. Either way, it wouldn't hurt the person and ultimately it's his choice. 

Edited November 22, 2021 by Gee2021

[Rocio0010 5,635]

6 hours ago, Gee2021 said:

overstay because there's more complexity to my case

Overstay itself is not an issue. In your case, there are other complexities, which doesn’t seem to be OP’s case.

[powerpuff 6,748]

~ Moved from AOS from work/student/tourist case filing to Process ~

[Sianaks 1]

On 11/21/2021 at 4:46 PM, Timona said:

 

OP is good to go. 

There are people who've overstayed in the US for years and just married USC and went in and out of US with AP without issues. No need to consult an attorney on this one. 

 

Search VJ here. There are a lot of successful stories. 

 

Two of my boys just came from abroad with AP, one this past Thursday. This one came on F-1 and his status expired long ago. He married USC and filed October of 2020. Got his AP combo in May or June and went to visit home country. The other came on B1/B2 in 2015 and overstayed. He too filed in October/ September 2020 and just came back from Mexico with AP.

 

Basically, you don't need an attorney for any small thing. 

A fellow Kenyan! Mambo?! 

Thanks for your response. So, you're saying that your son who came in on a B1/B2 stayed in the country unlawfully from 2015 when his visa expired, until he got married and filed for AOS in Sept/Oct 2020, and he traveled on this AP and didn't have a problem reentering the US when he returned from Mexico?

 

Thanks

[Timona 4,208]

15 minutes ago, Sianaks said:

A fellow Kenyan! Mambo?! 

Thanks for your response. So, you're saying that your son who came in on a B1/B2 stayed in the country unlawfully from 2015 when his visa expired, until he got married and filed for AOS in Sept/Oct 2020, and he traveled on this AP and didn't have a problem reentering the US when he returned from Mexico?

 

Thanks

 

My friend(s). Hahahhaa

And yes to both 2 parts of your statement, one went to Mexico and the other to Nepal. They both came back on AP, no problem at all.

 

Intent is determined at POE. So do not take this scenario and tell our boys back home to use this method to come to US and stay. That will be pre-conceived intent, and is fraud. I know Kenyans and shortcuts 🤣😅😂

 

Sema Boss.... unafanya nini Seattle? Or wewe ndio wale Wakenya wa Amazon?