Admission into the United States After Removal

MaunaLani

MaunaLani

New Member
Hello everyone,
I am writing here looking for advice on what are my possibilities of returning to the US and become a citizen after being asked to leave and I left on my own.

I am married with an American citizen. In 2020, while being in the US on a tourist visa I petitioned for resident status (I-485) based on being married with an US citizen. Our I-130 was approved but I-485 was denied for being inadmissible on the base of INA 212(a)(9)(B) and INA 245(a)(2).

In 2002 I travelled to the US with a J1 visa (not subject to 212(e)). I overstay my visa, but I departed the US on my own in 2009. In 2017 I requested a tourist visa and it was granted to me, and so I travelled to the US for two weeks that year. In 2018 when me and my wife returned to the US, we decided to stay. I started the immigration process within the 6 month period of my allowed stay in the country. After my I-485 petition was denied and I was asked to leave the US (March 2020), I decided to do so, but I couldn’t do that immediately because of COVID. After several months, when safe to travel, I left the US on my own (August 2020). I never enter the US illegally.

What are my chances to succeed going back to the US and getting back on track with becoming a US citizen. What steps do I have to take? What forms do I have to fill up? How long does it take? How much does it cost?
 
I don't see why your I-485 was denied. The 9B ban is a 3-year ban if you accrue 180 days of unlawful presence and then depart the US, or a 10-year ban if you accrue 1 year of unlawful presence and then depart the US. But I don't see where you accrued any unlawful presence in your history. Also, you mentioned "removal", but I don't see any removal in your history.
 
Thank you for your response.

This is part of the Decision that I received from USCIS (Feb 2020), following which I left the US:
“On February 11, 2019. you filed Form 1-485, Application to Register Permanent Residence or Adjust Status, with U.S. Citizenship and Immigration Services (USCIS) under section 245 of the Immigration and Nationality Act (INA). After a thorough review of your application, supporting documents, and testimony during your interview, we must inform you that we are denying your application …”
......
"On January 06, 2020, you appeared for an interview to determine your eligibility for adjustment of status. During the interview and review of your application with an Immigration Services Officer, you testified that the information on your Form 1-485, along with any amendments made during the adjustment interview, and supporting documents were true and correct.
USCIS records establish that you last entered the United States on October 18, 2018 as a visitor for pleasure with authorized stay until April 17, 2019. You also made prior visits to the United States from November 29, 2017 to December 13, 2017. In 2002, you were issued a non-immigration exchange student visa (J-1) valid from June 10, 2002 to September 15, 2002. You were admitted as a J-1 with duration of status or until your completion of your program. You remained beyond your completion of the program and departed the United States on or about 2009. You were unlawfully present in the United States for a period of more than 1 year, then voluntarily departed on ar about 2009. Since you were not the beneficiary of a grant of advance parole when you left, your leaving the United States counts as a departure for purposes of inadmissibility. See Matter of Arrabally, 25 I&N Doc. 771 (BIA 2012). Therefore, you are inadmissible to the United States. You did not apply for a waiver of this inadmissibility. You are not qualified to adjust status, and USCIS denies your Form 1-485. See INA 212(a)9)B) and INA 245(a)(2)."
....
"You are not authorized to remain in the United States. If you fail to depart the United States within 33 days of the date of this letter, USCIS may issue you a notice to Appear and commence removal proceedings against you with the immigration court: This may result in your being removed from the United States and found ineligible for a future visa or other U.S. immigration benefit. See sections 237(a) and 212(a)(9) of the INA.“
 
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Again, I don't see any reason for why your I-485 would have been denied. And knowing this is important for when you apply again.

The second paragraph is just saying that they can put you into removal proceedings. But if you hadn't received a Notice to Appear (NTA), then you were never in removal proceedings. (In fact, if your I-485 was wrongly denied, you want to be put into removal proceedings, because it basically allows you to appeal the I-485 denial. But it's too late for that now as you've left the US.)
 
newacct said:
Again, I don't see any reason for why your I-485 would have been denied. And knowing this is important for when you apply again.

The second paragraph is just saying that they can put you into removal proceedings. But if you hadn't received a Notice to Appear (NTA), then you were never in removal proceedings. (In fact, if your I-485 was wrongly denied, you want to be put into removal proceedings, because it basically allows you to appeal the I-485 denial. But it's too late for that now as you've left the US.)
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Thank you so much for your time. Any ideas on what to do next?
 
Can you give more information about why they say they denied your I-485? Do you understand why they denied it?
 
newacct said:
Can you give more information about why they say they denied your I-485? Do you understand why they denied it?
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I don't understand. This is what they say: "The evidence of record shows that, when you filed your application, you were present in the United States contrary to law." When applying for the adjustment of status I was lawfully present in the US on a tourist visa.
 
Okay, I read the longer quote you provided above. So basically, they thought you accrued more than 1 year of unlawful presence on your J1 stay, and triggered a 10-year ban upon departure, and I guess the date you applied for I-485 might have been slightly under 10 years after that 2009 departure. But that reasoning is completely wrong because "unlawful presence" does not begin to accrue when you complete your program or when you go out of status. (Also, they don't seem to have mentioned the end date of your program, so how did they determine that you stayed more than 1 year past the end anyway?) You have to stay past the date on your I-94, or applied to USCIS for some benefit and was denied, or had a final order against you in immigration court, in order for unlawful presence to start to accrue. They said that you were admitted on J1 for "duration of status", which means there was no date on your I-94, so you should not have accrued any unlawful presence no matter how many years you stayed past the end of your program, as long as you never applied to USCIS for any benefit and were never put into removal proceedings. So this was clearly a wrong denial and you should've challenged it. But you didn't and left the US and it's moot now.

On your second stay, you did not accrue unlawful presence while your I-485 was pending, but it started to accrue the day after your I-485 denial. If the date of denial was in March and you left the US in August, you left after accruing less than 180 days of unlawful presence, so you should not have triggered a ban. If you were put into removal proceedings, then a removal order in absentia could also trigger a ban, but if you are sure that you didn't receive an NTA, then you don't need to worry about that.

At this point, since you are outside the US, you should do Consular Processing for an immigrant visa. Since you already have an approved I-130, but it is at USCIS for Adjustment of Status, your spouse could file I-824 (with reason 1.d) to move it to NVC for Consular Processing.
 
newacct said:
Okay, I read the longer quote you provided above. So basically, they thought you accrued more than 1 year of unlawful presence on your J1 stay, and triggered a 10-year ban upon departure, and I guess the date you applied for I-485 might have been slightly under 10 years after that 2009 departure. But that reasoning is completely wrong because "unlawful presence" does not begin to accrue when you complete your program or when you go out of status. (Also, they don't seem to have mentioned the end date of your program, so how did they determine that you stayed more than 1 year past the end anyway?) You have to stay past the date on your I-94, or applied to USCIS for some benefit and was denied, or had a final order against you in immigration court, in order for unlawful presence to start to accrue. They said that you were admitted on J1 for "duration of status", which means there was no date on your I-94, so you should not have accrued any unlawful presence no matter how many years you stayed past the end of your program, as long as you never applied to USCIS for any benefit and were never put into removal proceedings. So this was clearly a wrong denial and you should've challenged it. But you didn't and left the US and it's moot now.

On your second stay, you did not accrue unlawful presence while your I-485 was pending, but it started to accrue the day after your I-485 denial. If the date of denial was in March and you left the US in August, you left after accruing less than 180 days of unlawful presence, so you should not have triggered a ban. If you were put into removal proceedings, then a removal order in absentia could also trigger a ban, but if you are sure that you didn't receive an NTA, then you don't need to worry about that.

At this point, since you are outside the US, you should do Consular Processing for an immigrant visa. Since you already have an approved I-130, but it is at USCIS for Adjustment of Status, your spouse could file I-824 (with reason 1.d) to move it to NVC for Consular Processing.
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Thank you so much for helping me understand my situation and for your advice. I am really grateful
 
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