Pending AOS - "Authorised stay" vs "Legally present"

[Bob in Boston 698]

8 hours ago, JohnnyForeigner said:

The employer is happy with me being pending AOS and having EAD. It is the "unlawfully present" immigration status that is impeding me.

so if you didnt overstay and did a k1 you could start work. Price you pay for for the overstay. it will be forgiven onc you get your Green card approved. Lawful Status means you came on a visa of some sort.authorized stay is only for spouses of US Citizens while they AOS. Bad time will be forgiven WHEN Green card is approved. untill then.....it is what it is

[chrissandra 59]

Government jobs have stricter regulations, and that’s just a fact. Some, require citizenship, some GC and all will - always - conduct an extensive background check. There’s no way around that. Immigration is a lengthy process and patience is necessary. 

[iwannaplay54 985]

7 hours ago, Bob in Boston said:

so if you didnt overstay and did a k1 you could start work. Price you pay for for the overstay. it will be forgiven onc you get your Green card approved. Lawful Status means you came on a visa of some sort.authorized stay is only for spouses of US Citizens while they AOS. Bad time will be forgiven WHEN Green card is approved. untill then.....it is what it is

Its a simple matter of filing AOS before not after your I94 expires

DL, job, etc you can still get.  Clearance, etc?  Gotta wait.  The OP was asking about a license, not security clearance.

Edited December 20, 2022 by iwannaplay54

[JohnnyForeigner 35]

1 hour ago, iwannaplay54 said:

Its a simple matter of filing AOS before not after your I94 expires

DL, job, etc you can still get.  Clearance, etc?  Gotta wait.  The OP was asking about a license, not security clearance.

OP was asking about both !

 

The DMV sent an immigration check to USCIS Save program.

The Police Dept that issues the certification required by my line of work sends its enquiry to ICE.

 

 

[iwannaplay54 985]

29 minutes ago, JohnnyForeigner said:

OP was asking about both !

 

The DMV sent an immigration check to USCIS Save program.

The Police Dept that issues the certification required by my line of work sends its enquiry to ICE.

 

 

Hopefully your AOS will go smoothly.  Dont break any more rules ya.

[JohnnyForeigner 35]

23 minutes ago, iwannaplay54 said:

Hopefully your AOS will go smoothly.  Dont break any more rules ya.

5 decades of living very much by the rules.

 

A career involved in enforcing them too.

 

My overstay was not what I would have chosen but circumstances did not give me a choice. Long story.

 

I hope so too. As has been said - its a waiting game. I wake each morning knowing I am a day closer.

[chrissandra 59]

3 hours ago, JohnnyForeigner said:

5 decades of living very much by the rules.

 

A career involved in enforcing them too.

 

My overstay was not what I would have chosen but circumstances did not give me a choice. Long story.

 

I hope so too. As has been said - its a waiting game. I wake each morning knowing I am a day closer.

Keeping fingers crossed that you get processed soon!!! 
🤞🏻🤞🏻

[JohnnyForeigner 35]

A little progress.

 

I contacted the Federal body who regulates the particular field of work I am prohibited from by virtue of being "illegally present" in the US. I asked whether they regard an Alien paroled into the US as "legally in US".

 

They confirmed that their definition of legally present does NOT include a period of authorised stay pending AOS unless the i-94 is current. However they also confirmed that they consider an Alien paroled into US as legally present until expiry or revocation of such parole.

 

Which answers my question, thankfully.

 

 

I asked the same question of GA driver services ( DMV ) They said that their defination of a person legally present in US and entitled to GA drivers licence was......

 

"An Alien whose status has been confirmed by USCIS Save program."

 

They totally rely on this Save program - not EAD, receipt letters etc. So, I guess it will totally depend on the wording of the reply from Save program -

"Illegally present" ( the reply ICE use for those in authorised stay re AOS )

"Authorised stay" 

"Paroled" ( If I get AP etc )

 

Hopefully the latter and the phrase "authorised stay" will reassure them !

 

 

I asked "If you rely on Save program to verify my status, why do you need to see my EAD and receipt letter for AOS application ? If you do not accept them as proof of status, why even look at them ?

 

I await a reply and doubt I will get one.

 

As of this morning - Save program shows the DMV request as still "under review" after 18 business days.

Edited December 22, 2022 by JohnnyForeigner

[Chancy 6,241]

On 12/19/2022 at 8:20 PM, JohnnyForeigner said:

I only provided proof because you seemed to think authorised stay = lawful presence.

 

@iwannaplay54 is correct -- those with pending I-485 are granted authorized stay, which allows them to be lawfully present (ie, not accrue unlawful presence) even if they have no lawful status prior to getting EAD/AP.  For US immigration, lawful status is different from lawful presence.

 

The USCIS policy manual page you referenced before, talks about lawful status.  The USCIS page about lawful presence (key points below) is at -- https://www.uscis.gov/laws-and-policy/other-resources/unlawful-presence-and-inadmissibility

• Unlawful presence is the period of time when you are in the United States without being admitted or paroled or when you are not in a "period of stay authorized by the Secretary."
• If you are in the United States maintaining lawful status, meet the requirements for an exception, or are otherwise considered to be in a period of stay authorized by the DHS secretary, then you do not accrue unlawful presence.

Based on the above, it is clear that while someone with authorized stay may not have lawful status, they have lawful presence (ie, they are not accruing unlawful presence).

 

As for getting state DL/ID, the most strict states require applicants to have lawful status, so AOS applicants without EAD in those states are out of luck.  Some states are fine with just lawful presence, so they issue DL/ID to those with I-485 receipt even without EAD.  A few don't care about immigration status at all, as long as the applicant has proof of state residence.  GA is one of the states that require lawful status for issuing state DL/ID.  Note that for the GA DDS, having I-766 c09 EAD + I-797c for pending I-485 is sufficient proof of lawful status -- https://dds.georgia.gov/real-id-documents-list

 

[JohnnyForeigner 35]

Yes - it all revolves around various institutions having different definitions of what is lawful !

 

GA Driver services - yes, they ask for EAD and receipt notice for I-485 as proof BUT they rely on a reply from USCIS Save program to VERIFY those documents.

 

It is an electronic service - most are "verified" in seconds. If not instantly verified, Save program tries to reply within 20 business days with an answer whether positive or negative.

[JohnnyForeigner 35]

 

One example I found during my research is firearm legislation - an alien illegally in the US is prohibited from firearms ownership. There is case where a DACA individual with AUTHORISED STAY was arrested and charged. The Judge made it clear that an alien in authorised stay was not "legally present" for the purposes of the gun control act. They opined that authorised stay is not lawful immigration status. It is the Secretary of DHS permitting an individual to stay for a specified purpose where they would ordinarily not permitted.

 

In short - for the purposes of THAT legislation, an Alien is ONLY legally in US if his i-94 is current.

 

 "Despite the misleading phrase “period of authorized stay,” a foreign national with this designation is not legally in the United States, and can be removed  by the U.S. government" is what was defined by that particular case law.

 

I am sure there are other examples both State and Federal.

 

All these subjective interpretations of what is lawful could be avoided if USCIS would just issue a new i-94 to those in a period of authorised stay !

 

 

 

 

 

Edited December 24, 2022 by JohnnyForeigner

[iwannaplay54 985]

On 12/19/2022 at 8:20 PM, JohnnyForeigner said:

 

I only provided proof because you seemed to think authorised stay = lawful presence.

I know it does.   If it did not, you would be accruing another day of unlawful presence every day you are on US soil, including today.  180 days will earn you a 3-yr ban, a year will earn you a ban for a decade. 
 

You are not currently accruing any more unlawful presence.
 

Once your travel doc /EAD are processed you may work, live, drive, and travel in and out of the US but you are adjusting STATUS from “illegally present” to LPR (you appear to have filed after I94 expired which was a critical error that unfortunately usurped all 5 decades of “following and enforcing the law”) and USCIS / DHS is NOT going to magically change you to any other status until your I485 is approved.  Once this happens, that error is forgiven, erased, and will likely never come up again.  
 

Your goal of enjoying any further benefits (clearance for certain jobs, turning your home into an armed compound if you wish to be like a good Texan LOL) will unfortunately need to wait.
 

 It is not unusual for an applicant to try another DL office, we had to go to two in Texas to get my wife’s first DL and she had a valid K3, EAD, SS card, receipt for pending AOS, but her issue was “less than 6 months on the I94” when Texas required the above docs + “I94 with minimum one year validity” which is exactly what a K3 I94 has, it was just the DMV officer’s “interpretation” that was the problem. 
 

Again, I hope your case goes smoothly (however) it might be a good idea to accept things as they are and wait patiently for your application to be processed and approved. 

 

Thanks @Chancy

 

Edited December 24, 2022 by iwannaplay54

[JohnnyForeigner 35]

Yes - I am not accrueing unlawful presence whilst pending AOS.

 

However, the fact remains that even with authorised stay, my i-94 is expired. I am out of status. As is anybody whose visa expires whilt waiting for AOS.

 

Pending AOS is not immigration status.

 

An alien in the US without i-94 is here illegally - in fact, one can be in removal proceedings at the SAME TIME as one is in a period of authorised stay !

 

All that authorised stay means is that you are authorised to stay DESPITE being illegally in the US.

 

Example- an Alien overstays visa by 10 years. After 180 days, removal proceedings are initiated. He ignores summons to immigration court. In his absence, Judge orders him removed. ICE look for him and cannot find him. He keeps a low profile and does not come to notice of police. After 10 years ILLEGALLY in the US, he marries a US citizen and files AOS.

 

He is now in a period of authorised stay. However he is still illegally in the US and is still subject to deportation.  It sounds crazy that you can have a removal order at the same time as being authorused to stay ! 

 

In fact, if he is granted parole, he can leave and present himself for inspection. But he will have been considered to have executed removal order by leaving. He is now barred from re-entry. 

 

You CAN be illegally in the US at the same time as being authorised to stay.

 

To be legally in the US ( for the purposes of Immigration law ) you must be inspected and admitted on visa. Basically, have a current I-94.

 

 

And while we are on the subject - aliens who are paroled into the US are not actually admitted. So, while present in the US hundreds of miles away from that CBP desk at the airport, they remain in "alien seeking admission" as if they were still standing at that desk in the airport.

 

Are they legally present in US with parole ? Technically they have not even been admitted !

Edited December 24, 2022 by JohnnyForeigner

[JohnnyForeigner 35]

I agree with your opinion  "it might be a good idea to accept things as they are and wait patiently for your application to be processed and approved"

 

However, there IS a way of moving from "illegally present in US and with expired i-94" to having a different status FOR THE PURPOSES OF THE PARTICULAR police clearance I need for that job.

 

My coming on here and asking about fresh i-94 after AP is not refusing to accept my situation - it is exploring what is possible within immigration law. 

 

And as stated in a previous post - I have since discovered ( direct from a Federal Agency ) the legislation relating to the paperwork I need for that job DOES include being paroled as an alien being legally present in USA for the purposes of THAT agency.

[JohnnyForeigner 35]

I know I posted it before but the last bit of this FROM THE USCIS OWN RULEBOOK is definitive.

 

Just because you have authorised stay dies not mean you are always in status.

Edited December 24, 2022 by JohnnyForeigner