When exactly are you considered overstayed?

[patty579]

My visa expires by the end of March, but we have to wait for a couple of things, before we can mail the petition/application.. probably for another 2 weeks.

Does the postal stamp on the application play a role here or do they take the date when I received their receipt notice for my application? Would I be considered overstayed if I sent it BEFORE my visa expired, but they didn't send the receipt notice until AFTER my visa expired?

Thanks in advance for any comments!

[patty579]

Does anyone know?

I've been trying to find posts with a similar topic, but no-one seems to be too sure about overstaying.
I've also read here many times that overstays are forgiven if you are married to a USC. But on my instructions to I-485 it says that you are not eligible to apply if
"Your authorized stay expired before you filed this application".

What do you think?

[ari4u]

This is what i read from the instructions of the I-485.

You are not eligible for adjustment of status if any of the following apply to you:

You failed to maintain your nonimmigrant status, through no fault of your own or for technical reasons; unless you are applying because you are:
-- An immediate relative of a United States citizen (parent, spouse, widow, widower or unmarried child under 21 years old)



This mean you are eligible to apply for I-485 as you are the spouse of a USC eventhough you overstayed your visa.

[patty579]

Thanks Ari. I didn't even see that, to be honest.
In general, I find the instructions very confusing sometimes. I mean, isn't it contradicting itself??

But your reply definitely made me stop worrying about this now, so thanks again!!

[ari4u]

I dont think it is contradictory. This form is used by various categories of applicants to adjust status and there is an eligibility criteria every applicant has to meet in order to file I-485. Being the immediate relative of a USC, a lot of those restrictions do not apply to you and you can still apply for I-485 and adjust your status even if you do not meet the eligibility criteria mentioned.

[Suzy977]

Originally Posted by ari4u

This is what i read from the instructions of the I-485.

You are not eligible for adjustment of status if any of the following apply to you:

You failed to maintain your nonimmigrant status, through no fault of your own or for technical reasons; unless you are applying because you are:
-- An immediate relative of a United States citizen (parent, spouse, widow, widower or unmarried child under 21 years old)

This is what kind of concerns me, the way they put it: "through no fault of your own or technical reasons".
So, for example if my parents tourist visa expires and they decide to stay, that, in my opinion is their fault and it's not covered under the above provision?!?

[rex1960]

Originally Posted by Suzy977

This is what kind of concerns me, the way they put it: "through no fault of your own or technical reasons".
So, for example if my parents tourist visa expires and they decide to stay, that, in my opinion is their fault and it's not covered under the above provision?!?

the key in this case is unless they are immediate relatives of a USC

[Suzy977]

Originally Posted by rex1960

the key in this case is unless they are immediate relatives of a USC

I totally agree with you.
But they don't say "failed to maintain nonimmigrant status PERIOD" they aded that b.s. regarding "no fault of your own" or "technical" reasons, this is what worries me!?!

[rex1960]

Originally Posted by Suzy977

I totally agree with you.
But they don't say "failed to maintain nonimmigrant status PERIOD" they aded that b.s. regarding "no fault of your own" or "technical" reasons, this is what worries me!?!

It is a matter of logic and grammar.

There are two different cases in the first place:

1) You are an immediate (direct) relative or not. In this case you might overstay your visa even if it's your own fault

2) You are NOT an immediate realtive. In this case you better don't overstay your visa.

Don't worry to much and please don't put too much into it.

[Suzy977]

Originally Posted by rex1960

It is a matter of logic and grammar.

There are two different cases in the first place:

1) You are an immediate (direct) relative or not. In this case you might overstay your visa even if it's your own fault

2) You are NOT an immediate realtive. In this case you better don't overstay your visa.

Don't worry to much and please don't put too much into it.

Thank you.
You know with INS nothing is clear, White or Black, there are too manny gray shades...

[rex1960]

Originally Posted by Suzy977

Thank you.
You know with INS nothing is clear, White or Black, there are too manny gray shades...

I beg to differ. I find it pretty clear and it's a law you can rely on even if it's not clear what human officers, immigration lawyers and posters here make of it. At least at the appeal court somebody's going to look at the clear text of the law. That's one of the things that made me emmigrate to the US and not to some banana republic

[Suzy977]

Originally Posted by rex1960

I beg to differ. I find it pretty clear and it's a law you can rely on even if it's not clear what human officers, immigration lawyers and posters here make of it.

That's the problem, when things become gray...

At least at the appeal court somebody's going to look at the clear text of the law.

That's good, but the question is: Do you want to go all the way to the appeal court?

That's one of the things that made me emmigrate to the US and not to some banana republic

I came to this country for everything else but the Immigration Law and the immigration process

In Canada since 1990 till now, with the score I have, I could've became a citizen, maybe 5 times, over and over and over...

[princesskate]

Originally Posted by ari4u

This is what i read from the instructions of the I-485.

You are not eligible for adjustment of status if any of the following apply to you:

You failed to maintain your nonimmigrant status, through no fault of your own or for technical reasons; unless you are applying because you are:
-- An immediate relative of a United States citizen (parent, spouse, widow, widower or unmarried child under 21 years old)



This mean you are eligible to apply for I-485 as you are the spouse of a USC eventhough you overstayed your visa.

How about unmarried child over 21 years old? A friend of mine is over 21 years old, unmarried, his mum (permanent resident, planning to apply citizenship this May) has filed I-485 for him since August 2001 (his case is now in Family based 2nd (b) priority, will change to 1st priority once his mum is naturalized) however his F-1 visa is expiring soon. Would he be placed a 3/10 year bar?

[patty579]

Originally Posted by rex1960

I beg to differ. I find it pretty clear and it's a law you can rely on even if it's not clear what human officers, immigration lawyers and posters here make of it.

I still think it is difficult for most people to see through that legal lingo. Law language is something you really have to get used to first. There is a huge handbook on the USCIS website, where it seems like it is explained to officers how to read and use their laws! So apparently it does deserve explanations.

Once you know what it means, it surely is the clearest and most reliable thing in the world, which is good. It's just that many people are intimidated and confused the first couple of times they read the laws and instructions.

[rex1960]

Originally Posted by patty579

I still think it is difficult for most people to see through that legal lingo. Law language is something you really have to get used to first. There is a huge handbook on the USCIS website, where it seems like it is explained to officers how to read and use their laws! So apparently it does deserve explanations.

Once you know what it means, it surely is the clearest and most reliable thing in the world, which is good. It's just that many people are intimidated and confused the first couple of times they read the laws and instructions.

I know, patty. That's why people should take their time and read very carefully through all those instructions. You can always come here and ask but how would you know that the info you're getting here is straight to the point and covers your individual case other than doing some research on your own.
I strongly believe in the concept of doing your own efforts and homework. Even if you get assistance by immigration lawyers they could tell you whatever without you knowing that it's utter BS just to get your cash.
However, some people here appear as if they've never been to that USCIS website before at all. I know that's not true for you, though.

[patty579]

Well of course everybody should read for themselves first. Otherwise you won't be able to differentiate here between people who know what they are talking about and people who don't.

Also I hope I will become one of those who know what they are talking about, in order to help others here in the future. And you just can't unless you read the sources over and over.

In the end, it's just so good and reassuring to compare what you read with the interpretations of those people who know what they are talking about!! I mean that's mostly why I am here.

[ari4u]

trust me... when i was getting ready to fill the forms, it took me a coupla days, so many re-reads of the instructions, scouring the posts of this forum day and night before that clarity finally dawned on me. It felt like i was high on dope when i finally understood what was required The most confusing part was the I-864 which i wouldnt have understood without the help of the gurus here .

[patty579]

Originally Posted by ari4u

trust me... when i was getting ready to fill the forms, it took me a coupla days, so many re-reads of the instructions, scouring the posts of this forum day and night before that clarity finally dawned on me. It felt like i was high on dope when i finally understood what was required The most confusing part was the I-864 which i wouldnt have understood without the help of the gurus here .

lol and now you are a guru yourself!
I totally know what you are talking about. It feels SO good, when you realize you finally understand what is being said in some forms.
Sadly I still feel like I have a long way to go. I'm telling you, my first celebration will be on the day I submit my AOS package!

[cat001]

Originally Posted by patty579

Does anyone know?

I've been trying to find posts with a similar topic, but no-one seems to be too sure about overstaying.
I've also read here many times that overstays are forgiven if you are married to a USC. But on my instructions to I-485 it says that you are not eligible to apply if
"Your authorized stay expired before you filed this application".

What do you think?

This is also my question. I understand that an immediate relative of USC can overstay. But that dose not seem to overrule expiration of your anthorized stay which I believe is given by I-94. Any comments? Thanks!

[GotPR?]

Originally Posted by cat001

This is also my question. I understand that an immediate relative of USC can overstay. But that dose not seem to overrule expiration of your anthorized stay which I believe is given by I-94. Any comments? Thanks!

Please do not consider IR of USC CAN overstay. It is still illegal. They must not overstay, but they are forgiven FOR HUMANITARIAN REASON TO US CITIZEN. Forgiven overstay does not overrule I-94 expiration(guess what will happen if immediate relative left the US after more than 180 days overstay), however, one is eligible to I485. Once one can file I485, they are in authorized stay.

How about unmarried child over 21 years old? A friend of mine is over 21 years old, unmarried, his mum (permanent resident, planning to apply citizenship this May) has filed I-485 for him since August 2001 (his case is now in Family based 2nd (b) priority, will change to 1st priority once his mum is naturalized) however his F-1 visa is expiring soon. Would he be placed a 3/10 year bar?

He already is under AOS pending(his F1 is not supposed to be valid) .

[GreenCardVirus]

Overstay starts when your I-94 expires and there is NO application pending with USCIS with "latest" "receipt date" of that application as expiry date of I-94.

IF the pending application is denied, then overstay starts from day of I-94 expiry.

Types of pending application could be extension of status, change of status type.

[justnew]

Hope you guys are not getting the whole issue mixed up:
Even if your non immigrant visa expires and your I94 is still current you are still considered legal, it is only when you overstay the period on your I94 that you are considered overstay and problably become illegal.

[cherr1980]

I don't think they are mixing anything...but your non-immigrant status is not valid anymore when you apply for adjustment of status. You will be in an authorized stay by the Attorney General. That is why you need (if you are not H1B or other dual intent visa) an Advance Parole to re-enter the US after you are in AOS because your non-immigrant visa even is not expired is not valid anymore.

If you pass the period of authorized stay by your I-94 you start acruing illegal presence but the clock stop when you apply for adjustment of status or another pending application that give you a period of authorize stay (does not count for I-130 application that does not give you any status). Anyway the time that you were overstay is forgiven if you are an immediate relative ONLY for the purpose to still be eligible to apply for AOS, is not forgiven for other terms, like even if you have an approved Advance Parole you can be bar for re-enter the country if you overstay more than 180 days, etc.

[ari4u]

I completely agree with Cherr and GotPR... being the immediate relative of a USC does not give you the right to overstay your I-94 date.

In general...
One is inelgibile to file I-485 if he/she overstayed the I-94 date or worked illegally. Being the IR of a USC only pardons overstay and illegal employment in order for the IR to be eligible and apply I-485 and get into a legal status.

[patty579]

I'm still kind of confused, not about what is illegal and what not, but about when my stay is being considered overstay.
Sorry if I am just being slow, but see my case for example:

My I-94 expired March 31th this year. But my ND for AOS is March 29th, which makes me legal, correct?
Still, I have stayed almost two months longer than my I-94 allowed. Have I overstayed, even though I was never really unlawfully present?
Or are you always overstaying when you stay longer than your I-94 allows?

[ari4u]

Originally Posted by patty579

I'm still kind of confused, not about what is illegal and what not, but about when my stay is being considered overstay.
Sorry if I am just being slow, but see my case for example:

My I-94 expired March 31th this year. But my ND for AOS is March 29th, which makes me legal, correct?
Still, I have stayed almost two months longer than my I-94 allowed. Have I overstayed, even though I was never really unlawfully present?
Or are you always overstaying when you stay longer than your I-94 allows?

You filed your AOS before your I-94 expired. This means you continued with your legal status and never overstayed.

When you stay beyond your I-94 date, it usually means you are overstaying unless you applied for AOS which gets you back in legal status. Dont worry, you are in a valid legal status now.

[cherr1980]

Okay, let's go again...don't worry, is kind of confusing.

In your particular case you did NOT acrue any illegal/unlawful presence nor overstayed, because you apply for adjustment of status BEFORE the expiration date of your I-94. You apply for a change of status, your status from non-immigrant to immigrant and that gives you an authorize stay. Overstay only counts if you were still as a non-immigrant with NO pending application.

Anyway, are you going to apply for I-131, is that your worry?

Probably this chart will help you a little bit:
http://www.utmem.edu/international/out_of_status.html

http://www.hias.org/Immigration/Answers/overstay.pdf

[patty579]

Thanks so much Ari and Cherr, I finally understand. How amazing!
Until today I thought I was overstaying!

I probably won't leave the country until I received my GC, but you're right, Cherr, it was my worry. My aunt was pretty sick and I was worrying about applying for an AP, just in case I need to go home.
Good to know that I could apply for AP, if I needed to. So thanks!

[cherr1980]

Can be confusing sometimes. I applied like one month before the expiration of my I-94 but never apply for I-131 because I was not in need of it (plus my husband was concern about the part of "no guarantee" about it), but later on we thought it could be helpful to have an AP since nobody knows when an emergency can come up, but well, we waited until the interview, everything went well.

Good luck,

[dicion]

Personal Experience, hopefully this will help

My wife's I-94 expired Dec 8th 2005. We got married Dec 6th 05.
So, technically, we were relatives before it expired

We didn't file for AOS until December '06.. due to many things.

So technically, she was here without any visa at all for about a year.

She was just approved for AOS to PR Today (see TimeLine Below)