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AOS after 10 year bar

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  • AOS after 10 year bar

    My cousin was petitioned in 2000 by his US citizen sister. He entered the US prior to 2000 on a B1/B2 visa and subsequently overstayed. However he left the country briefly in 2001 but returned to the US in 2001 and was admitted on his visa. His priority date is now current. Can he do AOS now or should he wait for 10 years to pass and hence the passing of the 10 year bar? That is, wait until next year (2011) to do AOS. (I assume a bar was triggered when he left)

  • #2
    No he has to leave US now and stay out for Ten years or apply for a waiver which is very hard to get.

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    • #3
      AOS based on a sibling petition (or any other family-based petition that isn't Immediate Relative of USC) requires legal status in the US at the time of filing the AOS.

      So regardless of the 10-year bar, he is not eligible to stay in the US for AOS, unless he qualifies for 245(i) protection.

      EB3 ROW I-485 Approved: July 2007
      USC: July 2013
      I am a layman, not a lawyer. What I write here is not official or professional legal advice. In addition, my answers on this forum are specific to the scenarios discussed in each thread and should not be generalized to other situations.

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      • #4
        He does qualify for 245(i) protection because he was petitioned prior to April 2001. So based on that can he apply for AOS after 10 years of his last departure?

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        • #5
          Doesnt the bar continue to run since he was lawfully admitted?
          Last edited by princegreen; 8th September 2010, 01:14 PM.

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          • #6
            If he left the US after April 30, 2001 and entered, he lost the 245i protection, and since he lived in US ever since, he never lived out of US for 10 years, that bar does apply.
            You are right had he didn't had that trip in 2001 he would have been OK if the petition was filed before April 30, 2001.

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            • #7
              Originally posted by namecheckvictim View Post
              If he left the US after April 30, 2001 and entered, he lost the 245i protection
              Wrong.

              The bigger problem is that re-entry to the US prior to the 10-year bar being complete makes him subject to a lifetime re-entry bar. He cannot adjust status since the last entry was not legal.
              ------------------------------------
              IMPORTANT NOTE: I am a Volunteer Moderator - one of you. I am not a lawyer. So act accordingly.

              PD: 9/12/2000 (EB3/VA/RIR/Canada)
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              • #8
                Originally posted by TheRealCanadian View Post
                Wrong.

                The bigger problem is that re-entry to the US prior to the 10-year bar being complete makes him subject to a lifetime re-entry bar. He cannot adjust status since the last entry was not legal.
                That might be false for 245(i) and unlawful entries before April 30, 2001*. Anyway, he should still apply for AOS now (claiming 245(i) relief), and whatever happens will happen.


                *although I think the cutoff for unlawful entry is before that.

                EB3 ROW I-485 Approved: July 2007
                USC: July 2013
                I am a layman, not a lawyer. What I write here is not official or professional legal advice. In addition, my answers on this forum are specific to the scenarios discussed in each thread and should not be generalized to other situations.

                Comment


                • #9
                  Originally posted by princegreen View Post
                  Can he do AOS now or should he wait for 10 years to pass and hence the passing of the 10 year bar?
                  The 10 year ban if* he is subjected to it must be served entirely outside the US unless he was paroled into the US before the ban expires. He came back with a visa, not parole, so none of the time in the US since then counts towards serving the 10 years. So there is no use in him waiting until next year -- like I said above, he should apply now and see what happens. USCIS will sort through the various rules and determine if he's eligible for AOS. If he's not eligible now, he won't be eligible next year either.


                  *it is possible it was never triggered, depending on his age when he overstayed
                  Last edited by Jackolantern; 9th September 2010, 06:09 AM.

                  EB3 ROW I-485 Approved: July 2007
                  USC: July 2013
                  I am a layman, not a lawyer. What I write here is not official or professional legal advice. In addition, my answers on this forum are specific to the scenarios discussed in each thread and should not be generalized to other situations.

                  Comment


                  • #10
                    I appreciate all your inputs. He was about 27 when he overstayed. But doesnt the fact that that he was legally admitted on a visa have any positive bearing on the case?

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                    • #11
                      Originally posted by princegreen View Post
                      I appreciate all your inputs. He was about 27 when he overstayed. But doesnt the fact that that he was legally admitted on a visa have any positive bearing on the case?
                      No. As someone in the F4 category who is not in legal status, he normally would be disqualified whether he had a legal or illegal entry. It's only 245(i) that is keeping his hope alive.

                      EB3 ROW I-485 Approved: July 2007
                      USC: July 2013
                      I am a layman, not a lawyer. What I write here is not official or professional legal advice. In addition, my answers on this forum are specific to the scenarios discussed in each thread and should not be generalized to other situations.

                      Comment


                      • #12
                        Take a look at this link regarding 245(i): http://www.hooyou.com/245i/whonot.html

                        It specifically said that the 245 protection does not waive the other bars, including the 3/10 year bars. Once you leave the US, you trigger the reentry bar and you'll then have to serve it. 245(i) won't help you with lifting that bar. So, what jackolantern said was right: You should just file now and try your luck; waiting further won't help you in any way unless of course he leaves the country and finishes his 10-yr bar.

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