Denied I-485: From when does one accrue unlawful presence?

[Brian_74]

Hello all....

My concern/question is:

My I-485 was denied and it appears that the USCIS counts the unlawful presence from the expiry of the I-94, even if the I-485 was filed prior to that date.

I received a denial of the I-485 in April 2005 and left the US shortly after (within 2 months). A Notice to Appear in an Immigration court was sent and in that letter, it states that the USCIS "allege" I remained unlawfully in the country since January 2004, which would be the expiry date of the I-94.

In June 2005, after I had left, another letter was received - it states that there is no case pending to appear in front of an immigration court. So that was cleared.

However, even if I was being adjusted and thus not illegal, it looks like I began accruing unlawful presence not from the date of denial but from the expiry date of the I-94.

I am confused as many posts seem to suggest that one accrues unlawful presence from the date of denial, which would make sense. Though sense does not always prevail unfortunately. Anyone in a similar situation or is able to advise? As it stands, I may have a 10 year bar...

Thanks for any help!

 

[del0175]

Brian, this attorney explains it well:

"If USCIS finds, during the adjudication of a request for some immigration benefit, that the alien has violated his or her nonimmigrant status, unlawful presence will begin to accrue either the day after Form I-94 expires or the day after USCIS denies the request, whichever comes first."

 

[Brian_74]

Hmmm, thanks.... guess I am stuffed then.

 

[aos13]

Brian, this attorney explains it well:

"If USCIS finds, during the adjudication of a request for some immigration benefit, that the alien has violated his or her nonimmigrant status, unlawful presence will begin to accrue either the day after Form I-94 expires or the day after USCIS denies the request, whichever comes first."

The explanation in the link may not apply to this case, it sounds like only if the alien violated the nonimmigrant status, the unlawful presence begins to accrue. If I-485 is not denied due to that violation but for some other reason, this may not apply. Also it seems like there is more nuances regarding unlawful presence and unlawful status for different types of admission, so consulting a good immigration lawyer would be wise.

 

[Jackolantern]

Hmmm, thanks.... guess I am stuffed then.

Not necessarily. It depends on all the circumstances. In some cases, after an I-485 denial the unlawful presence starts counting only from the I-485 denial date, in other cases it starts at the I-94 expiration date, in other cases there is no unlawful presence at all.

What was the basis of the original I-485? Marriage to a US citizen? Employment? What was your status before filing the I-485 in 2004 ... student visa? Tourist?

Did you reenter the US after leaving in 2005? If yes did you file another I-485 which was denied, and what was your last legal status before filing the new I-485?