AOS creating C-9 status for out-of-status people - link?

M

ml_boston

Banned
If you read the INA, C-9 status (valid status while AOS is pending) is only offered to people who submitted their AOS prior to their existing I-94 expiration date. If AOS was filed after expiration of the I-94, C-9 status would not be extended and the out-of-status clock (for the 3/10 bars) would keep on ticking.

Per many postings, people have said the 3/10 bar clock stops ticking upon AOS filing. I understand that USCIS issued a memo years back stating the policy, but it was not written into the INA.

Can someone post a link to the memo? Preferably from a government site?

My father was out of status one month before filing AOS, and now has AP. Before he uses the AP, I want to have documents in hand to prove that he's only charged with one month out of status (eg the clock stopped ticking once he filed).

-ML

K1 -> I-485 -> I-751 -> N-400

Now filing I-130/I-485 for parent...
 
GotPR,

I don't exactly understand your response:

I read the "if timely filed" section, which I interpreted as C9 status won't be given and the out-of-status clock keeps ticking. Is that what you're saying?

Many have posted that it stops ticking, which contradicts the INA, and was announced by memo. When I clicked on your link, it pointed me to all the USCIS memos, do you know which one (eg: date)? There are probably hundreds in that link.

-ML

K1 -> I-485 -> I-751 -> N-400

Now filing I-130/I-485 for parent...
 
Now I'm completely confused. I posted on here when I applied for AOS, asking if I was now considered "out of status" (I had been in status as an F-1 student when I applied, and had never gone over my I-94 or legal stay.)

Everyone told me then that I had no status - I wasn't out of status or accruing overstay days, but I didn't have a named status either. According to you ml_boston, I should be C-9.

It probably makes no material difference, but it's awfully confusing...
 
captainkit said:
Everyone told me then that I had no status - I wasn't out of status or accruing overstay days, but I didn't have a named status either.
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If your F-1 status expires or is invalidated, then you would be in a period of stay authorized by the Secretary of Homeland Security, but not have any non-immigrant status.

According to you ml_boston, I should be C-9.
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There is no such status.
 
ml_boston said:
GotPR,

I don't exactly understand your response:

I read the "if timely filed" section, which I interpreted as C9 status won't be given and the out-of-status clock keeps ticking. Is that what you're saying?

Many have posted that it stops ticking, which contradicts the INA, and was announced by memo. When I clicked on your link, it pointed me to all the USCIS memos, do you know which one (eg: date)? There are probably hundreds in that link.
.
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Only lawyer can tell. Pretty much all the clause regarding pending petition says "if timely filed, you are in authorized stay". There is no clear mention about the case that application isnot timely filed.
There are some memos referring to COS/EOS that says that if petition filed after I94 expiration gets denied, you accrue the illegal presence from the I94 expiration date, not from the denial date of application. It somehow made me think that pending petition may stop the clock, but not clearly mentioned.

Personally, I wouldn't play a risky game(travelling with assuming clock stops ticking) if I were in such situation.
 
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GotPR? said:
Personally, I wouldn't play a risky game(travelling with assuming clock stops ticking) if I were in such situation.
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Agreed, unless someone can come up with a link to the aforementioned USCIS memo (anyone?), he's going to either leave on AP prior to 6 months, or wait for the GC.

captainkit said:
Everyone told me then that I had no status - I wasn't out of status or accruing overstay days, but I didn't have a named status either. According to you ml_boston, I should be C-9.
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I have seen website/posts calling it "Period of stay authorized by Attorney General", "period of stay authorized by the Secretary of Homeland Security", and "C-9 status".

The only hard reference to C-9 that I am aware of is the I-765 instructions. It says "In order to determine your eligibility, you must identify the category in which you are eligible and fill in that category in Question 16 on the Form I-765." and then later says to enter "(c)(9)" if you have a pending Adjustment of Status.

-ML

K1 -> I-485 -> I-751 -> N-400

Now filing I-130/I-485 for parent...
 
http://www.state.gov/documents/organization/87120.pdf

When you apply for AOS, the clock stops ticking, unless you file I-485 defensively.

(5) For aliens who have properly filed an application for adjustment of status to that of a lawful permanent resident, the entire period of the pendency of the application, even if the application is subsequently denied or abandoned, provided the alien did not file for adjustment "defensively," i.e., after deportation proceedings had already been initiated; and,
..............
c. Consular officers should note that any unauthorized presence accrued prior to the filing of an application for adjustment of status, or the granting of voluntary departure, or the effective date of TPS is not "cured" by the subsequent period of authorized stay that these events trigger, and additional unauthorized presence will resume accruing after these authorized periods lapse.
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In my case

Filed AOS (only I-485) for my wife in January after I became a USC. Keep in mind by that time I already had I-130 approval notice for her. I had applied her I-130 just couple of days after her I-94 status (B1/B2) had expired.

Later, during this wait, i decided to apply for my wife's EAD card (I-765) and I wrote c-9 in item 16 of the form. I am sure I was right coz my wife's EAD application was approved & she now holds an EAD card valid for 1 year.

I plan on applying for my mother's AOS as well sometime next week. She is here in US on a visitors visa. She arrived US 2 months back. I will be writing c-9 as well when applying form I-765. The difference is, her I-94 is still valid for another 4 more months. Please let me know if I am selecting the wrong catagory (c-9). Thank you for your suggestion.
 
Atlanta_Brother said:
Filed AOS (only I-485) for my wife in January after I became a USC. Keep in mind by that time I already had I-130 approval notice for her. I had applied her I-130 just couple of days after her I-94 status (B1/B2) had expired.

Later, during this wait, i decided to apply for my wife's EAD card (I-765) and I wrote c-9 in item 16 of the form. I am sure I was right coz my wife's EAD application was approved & she now holds an EAD card valid for 1 year.

I plan on applying for my mother's AOS as well sometime next week. She is here in US on a visitors visa. She arrived US 2 months back. I will be writing c-9 as well when applying form I-765. The difference is, her I-94 is still valid for another 4 more months. Please let me know if I am selecting the wrong catagory (c-9). Thank you for your suggestion.
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I did some digging and found out what the elusive (c)(9) is. It is the part of the INA that authorizes EADs to adjustment applicants. It has nothing to do with current stay/status.

See 8 CFR 274a.12(c)(9) at this link:
http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=986aac4db930cc073769f8660262661d

Looks like you should put (c)(9) as well.

Also, for the I-131's current status question, I wrote "(c)(9) - AOS pending". I'm realizing now that the USCIS adjudicator probably laughed at my comment, but it was approved anyways.

-ML

K1 -> I-485 -> I-751 -> N-400

Now filing I-130/I-485 for parent...
 
Interesting discussion. I am close to filing an AOS for my wife and her I-94 states AOS too. She's on the 60 days grace period. I think according to this section, I can let her overstay (deadline is sep. 10 to either leave the country or transfer to another school).

I was very surprised to read in this law section that the "unlawful" status is is not acrued "...unless INS or an immigration judge makes a formal finding of a status violation, in which case unlawful presence will only begin to accrue as of the date of the formal finding..." This is very interesting. I take this as the following: if you did not get caught and found to be in violation of the I-94 then you are fine and technically you were not "unlawfully" present in US.

What do you think guys?
 
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I am confused by all this discussion. I am awaiting my oath. I am told it will be a day after my wife's I 94 expires. I am all ready with the paper work. I will apply AOS for her soon after. maybe even the very next day.
So she would technically have overstayed her I 94. How does that look? Should I let her go back and wait for Counsellor processing, which could take months?
I have asked this question before and I was told that a few days overstay would be pardoned if the person is the spouse of a US Citizen.I have read that many times here on this forum.Does c ( 9) apply to me?
 
zuzkin said:
This is very interesting. I take this as the following: if you did not get caught and found to be in violation of the I-94 then you are fine and technically you were not "unlawfully" present in US.
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That is correct. Unlawful presence is defined specifically, and depending on your status it can be very difficult to achieve. An F/J student has an I-94 annotated with D/S as the expiry date, so therefore cannot overstay. Interestingly, a Canadian B visitor almost never gets an I-94, and therefore can stay for 30 years and not accumulate illegal presence.

cr.marsh said:
So she would technically have overstayed her I 94. How does that look? Should I let her go back and wait for Counsellor processing, which could take months?
I have asked this question before and I was told that a few days overstay would be pardoned if the person is the spouse of a US Citizen.
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That's correct. As the Immediate Relative of a US citizen, your wife's I-485 cannot be denied because of the overstay. To this lay person, it would be crazy to send her away for several months to avoid an overstay of just a few days.
 
cr.marsh said:
I am confused by all this discussion. I am awaiting my oath. I am told it will be a day after my wife's I 94 expires. I am all ready with the paper work. I will apply AOS for her soon after. maybe even the very next day.
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Correct, unlike the "duration of status" entry that students are usually granted, if your wife's I-94 has an expiration date, her status expires on that day.

cr.marsh said:
So she would technically have overstayed her I 94. How does that look? Should I let her go back and wait for Counsellor processing, which could take months?
I have asked this question before and I was told that a few days overstay would be pardoned if the person is the spouse of a US Citizen.I have read that many times here on this forum.Does c ( 9) apply to me?
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Correct she would be "out of status" until your application is filed. However, USCIS has a special exemption for immediate relative petitions, where out of status time is ignored (See INA Sec 245c2). So the overstaying would not impact your application.

What could impact your application is your wife's "intent" when entering on her temporary visa. If she entered with the intent of immigrating that would be fraudulent use of a temporary visa. She can change her mind after arriving, but she cannot have entered with the intent to adjust status. Be sure you are fully aware of this point as you are interviewed.

-ML

K1 -> I-485 -> I-751 -> N-400

Now filing I-130/I-485 for parent...
 
TheRealCanadian said:
That is correct. Unlawful presence is defined specifically, and depending on your status it can be very difficult to achieve. An F/J student has an I-94 annotated with D/S as the expiry date, so therefore cannot overstay. Interestingly, a Canadian B visitor almost never gets an I-94, and therefore can stay for 30 years and not accumulate illegal presence.



That's correct. As the Immediate Relative of a US citizen, your wife's I-485 cannot be denied because of the overstay. To this lay person, it would be crazy to send her away for several months to avoid an overstay of just a few days.
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Thanks TheRealCanadian,

It looks like you are pretty knowledgable about these kind of things.
Is there anyway for you to answer one last question for me: i just came from an infopass and it looks like everything is ok and I am ought to be scheduled for an oath ceremony sometime in september. My wife was transfered to another school (to keep her F-1 status) and is supposed to pay by the end of this week, and start calsses on 9/10. In your opinion, if I wait till my ceremony and she does not go to school will there be any possible issues with overstay for her? Her I-94 states DOS and the two months grace period (carried out from her last school) ends on sep 10. Thanks a lot.
 
Once you become a USC, your wife's overstay issue will not be an issue anymore as she will be a spouse / immediate relative of a USC. You should be fine.
 
Atlanta_Brother said:
Once you become a USC, your wife's overstay issue will not be an issue anymore as she will be a spouse / immediate relative of a USC. You should be fine.
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Thanks Atlanta_Brother.

It is difficult for her to be considered "out of status" because she is enrolled in another school. Technically, she will not be out of status untill those guys will decide to report to immig. services that she did not report to school. Now, the question than becomes: will she have another 2 months of grace period or she will be automatically considered out of status?
 
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