Filing AOS, past COS problems

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vkgn

Registered Users (C)
I am an F1 student currently in status (finishing up my Ph.D.) filing for AOS through my husband (naturalized citizen). Our AOS case is fairly straightforward but while filing out my G-325A, I was going through my F-1 DS-156 and realized a possible mistake that could potentially derail my application.

I was on an H1B from 2007-2009 and was laid off from my job. I filed for a Change of Status to F-1 on the day I was laid off. Long story short, because I knew the COS would be problematic, I left the country essentially abandoning the application. However, 2 months later I was notified that my COS was denied, not because I abandoned it, but because they received it 4 days late (!!!)

I filed for a fresh F-1 visa from home but in the DS-156, to the question 'Have you violated the terms of your visa or have been unlawfully present in the US', I have answered 'No'. My interpretation of the question was since I already abandoned my COS, the decision was moot and I did not accrue unlawful presence. However, now I'm second guessing that answer and am sick to my stomach that USCIS will charge me with misrepresentation. Do you think this will be a problem? The DS-156 correctly shows the gaps in employment and the fact that I was unemployed when I applied for my F-1.

I am planning to consult with a lawyer, but any initial opinions are welcome.
 
If the I-94 of your H1B was unexpired when you got laid off, and you left the US before it expired and before they denied your change of status, that time period would be classified as "out of status", not "unlawful presence".

Getting laid off also isn't treated as violating the terms of your visa.

Stop worrying about it.
 
Jackolantern said:
If the I-94 of your H1B was unexpired when you got laid off, and you left the US before it expired and before they denied your change of status, that time period would be classified as "out of status", not "unlawful presence".

Getting laid off also isn't treated as violating the terms of your visa.

Stop worrying about it.
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Thanks Jackolantern. This makes me feel much better. My I-94 was valid when I left and the denial came a month after. I think I read somewhere that if a COS is denied for untimely filing, unlawful presence starts accruing since the day the status was lost but was unsure how USCIS interprets it if the case has already been abandoned (which is essentially equivalent to withdrawing the case).
 
vkgn said:
I think I read somewhere that if a COS is denied for untimely filing, unlawful presence starts accruing since the day the status was lost ...
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According to my understanding, that only applies to people who stayed past the I-94 expiration, or were otherwise already unlawfully present they applied for the COS. The act of unsuccessfully applying for COS didn't retroactively turn your out of status time into unlawful presence.

I could be wrong on the above points, but there is enough subtlety in it that it's highly unlikely they're going to use this to claim that you deliberately lied and deny your AOS because of it, and have that denial withstand an appeal. That's if they even notice or care about the few days or weeks you spent in the US after losing your job in 2009.
 
Jackolantern said:
According to my understanding, that only applies to people who stayed past the I-94 expiration, or were otherwise already unlawfully present they applied for the COS. The act of unsuccessfully applying for COS didn't retroactively turn your out of status time into unlawful presence.

I could be wrong on the above points, but there is enough subtlety in it that it's highly unlikely they're going to use this to claim that you deliberately lied and deny your AOS because of it, and have that denial withstand an appeal. That's if they even notice or care about the few days or weeks you spent in the US after losing your job in 2009.
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Thanks again for the quick response! I do hope the USCIS agrees with you since it seems to be more of an interpretation problem than a misrepresentation problem. I will also be consulting a lawyer (the same lawyer who told me in 2009 to leave the country because my COS was going to be denied, best 100 bucks I spent in my life!) I will post back so anyone else in the same boat can benefit.
 
Are you going to NOT apply if the lawyer says they could deny your AOS over this? I don't think so. So just go ahead and apply, and whatever happens will happen. You can't undo what you wrote on that visa application years ago. All you can do now is prepare to defend yourself if they say that you misrepresented your situation on the application.
 
Jackolantern said:
Are you going to NOT apply if the lawyer says they could deny your AOS over this? I don't think so...
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You're right. I won't not apply, but I might postpone applying so at least I have my Ph.D. If they kick me out. And of course, I'll start thinking of how to defend myself if they bring it up.
 
I think you're tripping unnecessarily. I went through essentially the exact same thing you're describing (Actually my situation was a little/much worse than yours, however I will not go into it here:):):)) and was fretting when applied to permanent residency. Never even came up.

Also it says until after you're notified by an Immigration Judge or USCIS about a violation, you do not accumulate illegal presence until your I-94 expires. Out of status is different from accruing illegal presence. Trust me I researched this ad nauseum before I filed.

In summary you never accumulated illegal presence because the notice came AFTER you had left. Did you violate the terms of your visa? You don't know that for a fact so, NO. Keep it simple.

vkgn said:
You're right. I won't not apply, but I might postpone applying so at least I have my Ph.D. If they kick me out. And of course, I'll start thinking of how to defend myself if they bring it up.
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ananga73 said:
I think you're tripping unnecessarily. I went through essentially the exact same thing you're describing (Actually my situation was a little/much worse than yours, however I will not go into it here:):):)) and was fretting when applied to permanent residency. Never even came up.

Also it says until after you're notified by an Immigration Judge or USCIS about a violation, you do not accumulate illegal presence until your I-94 expires. Out of status is different from accruing illegal presence. Trust me I researched this ad nauseum before I filed.

In summary you never accumulated illegal presence because the notice came AFTER you had left. Did you violate the terms of your visa? You don't know that for a fact so, NO. Keep it simple.
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Thanks ananga73, I'm really glad to hear from someone who was in a similar situation! I'm just going to be meticulous and honest in my AOS process, and hope they don't beat me up for something I'm not even sure is a mistake. You guys have been really helpful and have definitely put my mind at ease.
 
Just a quick update on this. I spoke to the lawyer and he said that it is possible to argue both ways (I did/didn't accrue unlawful presence) but it was highly unlikely that I would get denied because of my answer in the DS-156. However, he also said that I need to be able to defend my answer if it is brought up. So essentially he agreed with you guys.

So the next step is just to apply for AOS and wait :)
 
Hi, I just dug up this thread to post an update for anyone else in the same situation. My permanent residency was approved at our interview yesterday. There were several questions about our relationship (understandably) and a few about my current status/work but my past COS denial was never brought up.

Thank you ananga73 and Jackolantern for easing my mind when I was freaking out. Also for essentially being right (as always!)
 
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