Expert advice needed on unlawful presence.

J

JohnRooney

Registered Users (C)
This is question about unlawful status and unlawful presence.

I am a permanent resident and my spouse's green card was denied because her PD was not current at the time of filling.

Now her AOS application was employment based and was filled in 2005 and got denied in 2009 almost after 4 years. Obviously she lost her "non-immigrant-status" as she started using her EAD and primary became permanent resident in 2007.

since her PD was not current at the time of filing this will be considered as "frivolous" filing or "improper filing" and as the I 485 application eventually got denied, all of her stay from 2005 to 2009 will now be considered "Unlawful Presence" which are in access of 1 year easily so triggering 10 year bar, if she departs..I know on I 485 denial for properly filed application would accrue "unlawful status"

Is my assumption correct about 10 year bar in my wifes situation? Primary (myself) is not yet Citizen and has LPR status. I know I have to get the hardship waiver in order to do Consular processing or AOS...which are difficult to get...

My question is just about the 10 year bar?
 
Given that it was denied in 2009, unless this was very late in December 2009 it's rather moot whether they consider the time while the I-485 was pending to be included in the illegal presence. Because by now she has accumulated 180 days since the denial, which triggers the 3-year bar upon departure.
 
Thanks Jack for your response..

I know after the denial it is all "Unlawful Presence"..

But for the duration of the filled application, which is ultimately denied because it was improperly filled should accrue "Unlawful presence"?

So just a day after the denial, she accrued "Unlawful presence" from 2005 to 2009, which is almost 4 years. This will put a 10 years bar as I mentioned earlier as the
"Unlawful Presence " is already in access of one year.

Improperly filled application will not stop tolling according to field manual ...



9 FAM 40.92 N5 “TOLLING” FOR GOOD
CAUSE
(CT:VISA-1385; 12-11-2009)
a. Subparagraph (iv) of INA 212(a)(9)(B) provides for "tolling" for up to 120
days of a possible period of unlawful presence due to delay in
governmental action on an application to change or extend NIV status.
This subparagraph applies only to possible inadmissibility under
subsection INA 212(a)(9)(B)(i)(l).
b. DHS has inferred that the "120 days" limitation was probably predicated
on an assumption that they would be able to adjudicate the application
within that time frame. Due to DHS backlogs, however, some cases have
been pending as long as six months or more, during which the applicants
could incur the three or 10-year penalties through no fault of their own if
only the first 120 days were tolled and the application was ultimately
denied. Therefore, for all cases involving potential inadmissibility under
INA 212(a)(9)(B) whether under the three-year bar of 212(a)(9)(B)(i)(I)
U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 40.92 Notes Page 8 of 8
or the 10-year bar of INA 212(a)(9)(B)(i)(ll), DHS has decided to
consider all time during which an application for extension of stay (EOS)
or change of nonimmigrant status (COS) is pending to be time authorized
by the Attorney General (AG) provided:
(1) The application was filed in a timely manner; i.e., before the
expiration date of the Form I-94, Nonimmigrant Visa Waiver Arrival
Departure Document;
(2) The application was "nonfrivolous"; and
(3) The alien has not engaged in unauthorized employment (whether
before or after April 1, 1997).
NOTE: Although INA 212(a)(9)(B) did not go into effect until April 1,
1997, and the law is not retroactive, unauthorized employment prior to
April 1, 1997, will render an alien ineligible for the nonfrivolous COS
and/or EOS exception because aliens who have engaged in unauthorized
employment are generally not eligible for change or extension of
nonimmigrant stay, and therefore, an application under such
circumstances should generally be considered frivolous.
c. To be considered "nonfrivolous" the application must have an arguable
basis in law and fact and must not have been filled for an improper
purpose (e.g., as a groundless excuse for the applicant to remain in
activities incompatible with his or her status). It is not necessary to
determine that the DHS would have approved the application for it to be
considered nonfrivolous.
 
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It has been over 180 days since the denial, correct? So the only question is whether she gets a 3-year ban or 10-year ban, based on whether the time while the I-485 was pending (or rather, the time since her nonimmigrant status terminated until the I-485 was denied) gets counted in the illegal presence.

Whether it is 3 year or 10 year ban you're not going to have her wait outside the US, you're going to have her stay inside the US until you become a citizen so you can file for her and she can get a GC despite the illegal presence. So the 3-year vs. 10-year issue doesn't change what you're going to do.
 
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If a lawyer advised you to file her I-485 when the PD was not current, you should report them to the bar and get the money back that you paid to the lawyer.
 
You are absolutely right ? How does it matter if its 3 year or 10 year? She is facing the bar and we are in deep trouble...

Just believe me it matters for the *purpose* I asked the question.

I just wanted to confirm that "because of the improper file. My spouse accrued unlawful presence." that's it...

I am just looking for the answer to the question from legal perspective..

Once again I thank you for your reply...
 
I am not sure of the answer to your question regarding whether the I-485 filing without a current PD is considered "frivolous" and therefore the I-485 pending time counted towards the illegal presence. In general, it takes an immigration judge to decide what is frivolous and what isn't when it comes to assigning unlawful presence, although there are some clear-cut cases where it is obviously frivolous.

If you really need a definitive answer, consult a lawyer and ask them to show you a similar case where something like this was ruled one way or the other. If they can't show you a similar case, or something specific in the law or at least a USCIS memo, you can't take the lawyer's answer as being definitive.
 
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