Out of status more than 180 days

[Jeremy1126]

Just some questions about 245(k)...it says you're ok to apply for perm. residence if you fell out of your non-imigrant status for NOT MORE THAN 180 days. What if you applied for an extension BEFORE the 180 days was up, then got it approved AFTER the 180 days?

Second, does this rule (allowing you to get perm. residency if you fell out of your non-imigrant status for NOT MORE THAN 180 days) allow the person's derivatives to apply also if the same thing happened to them?

I appreciate any help you can give me. If it's possible to point me to the source of law for these answers, I'd really appreciate it.

Jeremy

 

[TheRealCanadian]

What if you applied for an extension BEFORE the 180 days was up, then got it approved AFTER the 180 days?

It depends on how the extension petition was filed. If it was filed as a nunc pro tunc to retroactively get you back into the status the entire time, then you should be OK. If not, then please provide more specifics. Extension petitions that aren't timely filed are very rarely approved.

Second, does this rule (allowing you to get perm. residency if you fell out of your non-imigrant status for NOT MORE THAN 180 days) allow the person's derivatives to apply also if the same thing happened to them?

It applies to every EB adjustment petitioner, no matter what their basis for filing.

If it's possible to point me to the source of law for these answers, I'd really appreciate it.

Section 245 of the INA covers it.

 

[Jeremy1126]

Thanks for your reply. Here's my response:

1) I don't think the extension (new I-129 was all it was) was done nunc pro tunc. It was FILED BEFORE the 180 elapsed, but it was APPROVED AFTER the 180 days elapsed. It was eventually approved. It's just a question of when you're considered to have gone "back into status."

2) About the derivative beneficiaries, I scoured through CFR 245, and couldn't find any reference to the derivatives being allowed the 180 day grace period...is that just assumed?

Thanks alot for your time, I appreciate it.

 

[TheRealCanadian]

It was FILED BEFORE the 180 elapsed, but it was APPROVED AFTER the 180 days elapsed. It was eventually approved. It's just a question of when you're considered to have gone "back into status."

You mean the I-129 was filed after the benficiary was out of status, and USCIS issued an I-94 with the approval notice?

I scoured through CFR 245, and couldn't find any reference to the derivatives being allowed the 180 day grace period...is that just assumed?

Yes, 245 covers adjustment of status no matter what its basis, unless explicitly stated otherwise. 245k is explicitly limited to EB applicants, but is silent on the primary/derivative matter.