Concerned about being inadmissable while adjustment of status application is pending

[socalgirl]

Hi guys,

I just discovered this website and read a few posts, such a great idea to create immigration forums! Let me tell you my story and you can share your experiences in the similar case:

I came to US December 29, 2002 with an F1 student visa, completed my studies and decided to stay in the country even after my visa expired. Visa expired October 31st, 2004 and I have been out of status for 2 years. I am getting married to a USC in November. I have remained in the US beyond the period of unauthorised stay and my case most probably will need a waiver of inadmissibility. Has anybody been in the similar situation and how they solved this problem?

Thanks in advance.

 

[ndc121]

If you're out of status for more than 6 months but less than 1 year, that triggers a 3 year ban. Being out of status more than 1 year triggers a 10 year ban.

Obviously you over stayed the visa, but the issue is whether you're out of status because your I-94 would state you are admitted for duration of status and not until a specific date.
Where someone is admitted for duration of status they begin accruing unlawful presence on the date the USCIS finds a status violation while adjudicating a request for another immigration benefit, or on the date an immigration judge finds a status violation in the course of proceedings.

If you have not received notification stating you are out of status, arguably your unlawful presence has not begun.

For those who find this hard to believe, I'd refer you to INS memorandum dated September 19, 1997, 96 Act #058 and 212(a) of the Immigration and Nationality Act.

However, if you were found inadmissible, a waiver is available under INA §212(a)(9)(B)(v) for an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

You'll need a good lawyer.
What is your DO?