Asylee travel on RTD and effect on GC application

[thankful]

Your distinction between being inadmissible and the bar makes no sense at all.

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF

Page 19, paragraph C.

 

[thankful]

There are two separate bars. If you have been unlawfully present for more than 180 days (but less than one year) you are not admissible for three years. If you have been unlawfully present for more than one year you are not admissible for ten years.

In general Any alien (other than an alien lawfully admitted for permanent residence) who—
(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 1254a (e) [3] of this title) prior to the commencement of proceedings under section 1225 (b)(1) of this title or section 1229a of this title, and again seeks admission within 3 years of the date of such alien’s departure or removal, or
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States,
is inadmissible.

 

[thankful]

Also as a very fine point, if the asylee has been placed into deportation proceeding (for example, if the Asylum Office referred the case to the Immigration Court), the 180 day trigger arguably will not apply to her/him. But the one year trigger will.

 

[algorithm]

The bar is triggered after 180 days, not one year.

But for asylees they routinely waive this bar. So do not worry too much.

Do I have to apply for a waiver?

 

[thankful]

No. They usually give you one without an application. Do not worry too much about this.

 

[assylum]

thankful is 100% correct. They usually give you a waiver without an application.

 

[raevsky]

Also as a very fine point, if the asylee has been placed into deportation proceeding (for example, if the Asylum Office referred the case to the Immigration Court), the 180 day trigger arguably will not apply to her/him. But the one year trigger will.

So, at this point I have full agreement to what I said and do not see a reason to investigate it further.

Do I have to apply for a waiver?

No if one year inadmissibility was not triggered.

 

[thankful]

So, at this point I have full agreement to what I said and do not see a reason to investigate it further.

No. It is not even close to "full agreement" to what you said.

You said "The bar is triggered after 180 days, but you become inaddmissible only after a year. Only being inadmissible causes an application for AOS to be denied for an asylee, having a bar does not."

That was factually wrong and stylistically incoherent.

An alien may be inadmissible for three years if he was unlawfully present for more than 180 days but less than one year.

In addition, an alien may be inadmissible for ten years if he was unlawfully present for more than one year.

These are two separate inadmissible grounds which you have conflated.

 

[thankful]

No if one year inadmissibility was not triggered.

That is not correct either. Even if an inadmissibility ground for having been unlawfully present has been triggered, the default rule is (barring exceptional circumstances) that the applicant does not need to apply for a waiver. The USCIS grants an automatic waiver based on information available from the asylum application and the adjustment of status application. This has been USCIS practice since at least 2005.

 

[arsen098]

Guys, did I right understand that if I had unlawful status( out of status, F1 student - I dropped out school and applied for asylum in 191 days ) for me bar trigger not apply, because unlawful presence and out of status are different things ? Because my case was referred in Immigration Court and I received Notice to Appear about removal proceedings.

 

[assylum]

The bar will trigger if you leave the country before you get LPR status.

 

[assylum]

arsen098
The 3 years bar will be trigger if you had unlawful presence for 180 days but less than 1 year and you leave the country before getting LPR status.
The 10 years bar is triggered if you had unlawful presence for 1 year or more and you leave the country before getting LPR status.

 

[thankful]

Guys, did I right understand that if I had unlawful status( out of status, F1 student - I dropped out school and applied for asylum in 191 days ) for me bar trigger not apply, because unlawful presence and out of status are different things ? Because my case was referred in Immigration Court and I received Notice to Appear about removal proceedings.

Assuming for a second that the bar applies to you, they will almost certainly grant you an automatic waiver from the bar. They have granted thousands of these waivers in the last 15 years--no questions asked.

It is not something worth losing sleep over. If you want to eliminate the 0.0001 percent chance that your green card will be denied then do not leave the US until you have your green card in hand.

 

[arsen098]

))) Thank you for advice, thakful. I got it. So what do you think - Will I have a problem with custom on the board when I gonna coming back in USA with a RTD?

 

[thankful]

No you will not. This is not an issue when you come back with a Refugee Travel Document. This is an issue when your green card application is up for a decision. Again they issue pretty much automatic waivers for this kind of stuffs.

 

[algorithm]

))) Thank you for advice, thakful. I got it. So what do you think - Will I have a problem with custom on the board when I gonna coming back in USA with a RTD?

dont worry. I just came back from Canada with no problem at all. The 10-year bar applies to me and I used my RTD to come back. The officer said to me welcome home

 

[algorithm]

Assuming for a second that the bar applies to you, they will almost certainly grant you an automatic waiver from the bar. They have granted thousands of these waivers in the last 15 years--no questions asked.

I hope this issue does not cause a delay in the process. My GC application is already 2 months outside the processing time. I hope this bar is not the cause of the delay

 

[arsen098]

Ok, thank you guys!

 

[raevsky]

Yes, I have to agree with thankful. The document he quoted does not give clear answer, but this one does

http://www.aila.org/content/default.aspx?bc=1016|6715|20852|28165|30095 page 16

3. Asylees and refugees seeking adjustment of status. An asylee or refugee subject to the three- or ten-year bar can seek a waiver under INA § 209(c). The waiver is submitted on Form I-602, although USCIS retains the discretion to grant the waiver without the application.

 

[thankful]

It is just a check the box thing. It will not really delay the process. Relax.