filing AOS ,Out of status and moving back home?

T

triniqueen

Registered Users (C)
Hey, I have this friend who is out of status ( have been for years) she is married to a US citizen and want to file I-485 and I130, she want to move back home and wait until her case is approve. Can she do this? If she leave will she be subjust to the 7-10 ban? Can her husband file for her if she moves back home? Any help would be great.. :confused:
 
Yes she can move back and her husband can apply for her, however, she will be subject to a 10 year ban because she has been out of status for a very long time. My suggestion would be for her to stick it out in the US for a few years until her AOS is done and then move back. On average, it takes 6 months to a year for AOS through a USC spouse. For a few cases, it takes more than that but vertainly not 10 years. Once she moves back, she is guaranteed not to come back to US for 10 years.

One more thing she can do is to take volunteer deportation. Then she is not subject to the 10 year ban but I am not sure if this will cause a problem with her counselor processing. Best course of action is to stick it out in the US for a couple more years.

Good Luck!
 
EricNeesGC said:
My suggestion would be for her to stick it out in the US for a few years until her AOS is done and then move back.
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So your suggestion is become a US resident, then leave right away?
:confused: What's the point?
 
triniqueen said:
Hey, I have this friend who is out of status ( have been for years) she is married to a US citizen and want to file I-485 and I130, she want to move back home and wait until her case is approve. Can she do this? If she leave will she be subjust to the 7-10 ban? Can her husband file for her if she moves back home? Any help would be great.. :confused:
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First of all, AOS cannot be done out of the country. Once you leave, that application is abandoned. She would have to do consular processing if she leaves the US. The husband should then submit I130 at the service center in the US and once that is approved, notice will be sent to the consulate and she will apply there for an immigrant visa. AOS is an "in-country process".

Having said that, I would not advise to do consular processing AT ALL, since like Eric said, she will be subject to a 10 year ban, and will not be allowed to do consular processing during this period. Also, even if she leaves voluntarily, it is not at all guaranteed that she won't still need to wait 10 years, having accrued all the overstay time.

The only way I see is for her to wait, do AOS in the US and then receive the GC. Only then can she travel. Also, even if she does get AP(Advanced Parole - travel permission) during the AOS process, DO NOT TRAVEL with this, as it will trigger the 10 year ban. She can only travel once she gets the GC.

Hope this helps
 
triniqueen said:
Hey, I have this friend who is out of status ( have been for years) she is married to a US citizen and want to file I-485 and I130, she want to move back home and wait until her case is approve. Can she do this? If she leave will she be subjust to the 7-10 ban? Can her husband file for her if she moves back home? Any help would be great.. :confused:
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There is difference between so called out of status and overstay.
Is she out of stauts or overstaying. and if she is out of staus, what visa and how is she out of status ? Depending on this, she may or may not be subject to entry bar.
 
GotPR? said:
There is difference between so called out of status and overstay.
Is she out of stauts or overstaying. and if she is out of staus, what visa and how is she out of status ? Depending on this, she may or may not be subject to entry bar.
Click to expand...

Well, yes, there are some exceptions. A student on an F1 visa could technically stay for years after they finished study, and will only start accumulating overstay after a judge/immigration official declares that the student is out of status(due do D/S duration of status on I94).

However, this is not the case for most visas and even for F1, if you have overstayed for years, as the OP said, would you really want to test the limits and extremes of the law?

AOS is by far the safest and most advisable method here.
 
D/S with F/J visa and Canadian without I94 is exacly the one I'm talking about.
Those with H/L can not be out of status such a long time as overstay will start at certain point(within 3 years at the longest), thus if one says out of status for long time, it is most likely F/J case.
I'm trying to buster the myth that most of people believes.

But I also do not think it's good idea to test it if there is a way to avoid it.
 
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