out of status vs illegal/unlawful presence -- difference?

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ateganda29

Registered Users (C)
what's the difference between the two? and is it true that the 3/10 year ban may still be applicable to a person married to a USC, applied and received approved AP, left the country prior to receiving GC, and was in illegal/unlawful presence for more than 180 days prior to application of AOS? how about same conditions but instead of illegal/unlawful presence, spouse was out of status? does the 3/10 year ban apply?
 
ateganda29 said:
what's the difference between the two? and is it true that the 3/10 year ban may still be applicable to a person married to a USC, applied and received approved AP, left the country prior to receiving GC, and was in illegal/unlawful presence for more than 180 days prior to application of AOS? how about same conditions but instead of illegal/unlawful presence, spouse was out of status? does the 3/10 year ban apply?
Click to expand...

“Out of status” literally means “illegal/unlawful presence”. It’s the same thing and no matter how you call it - there is a bar for being present in a country without lawful legal status for more than 180 days.
 
Being out of status is same meaning of being illegal or having unlawful presence.

And yes, 3/10 yrs bar will apply to everyone even if s/he is married to a US citizen and has a pending AOS if s/he would leave the country on approved Advance Parole after being illegal in this country for 180 days or more.

A lot of people mistakenly think that they will not be barred just because they are married to a US citizen or INS has approved them a Advance Parole. But these people don’t know that INS grants AP to everyone who has a pending I-485. Secondly, Advance Parole is granted by another section of INS office than the one that will adjudicate I-485. Third, it is very clearly stated as a warning on the application for Advance Parole and on Advance Parole itself that if someone was unlawfully remained in the US for more than 180 days before filing AOS then s/he would be found ineligible to adjust status despite of approved Advance Parole.

Though immigration officers at the airport would allow an alien into the country if alien would have a valid Advance Parole, but at the interview on AOS, adjudication officer would deny the application because of having 3/10 yrs bar if alien has departed the US before adjusting his/her status being out of status here more than 180 days. It could be possible that some officers may overlook it and approve the case, but mostly don’t. Then, an alien would need to file a waiver application to overcome with this bar. Getting an approval on waiver is very difficult and it is discretionary as well, which means-alien is not allowed to appeal it.

However, it should be noted that this 3/10 yrs bar applies only when alien departs the US after being here out of status more than 180 days. That means if alien won’t leave the US, then s/he has nothing to worry about it because being married to a US citizen, his/her out of status will automatically be forgiven at the time of adjusting status.

Good Luck.
 
oh okei. i've just read other posts where people were differentiating the two. so i was confused. i thought they were the same as well. thanks for the clarification guys!

another thing, johnny cash, you said that the 3/10 year ban is only applicable if the 'out of status'/'unlawful presence' spouse of a USC left the country even with an approved AP. what if that spouse in addition with an approved AP, left the country after s/he received his/her conditional GC? will the 3/10 year ban still apply? or not anymore since s/he has a GC -- even if it's only conditional.
 
ateganda29 said:
oh okei. i've just read other posts where people were differentiating the two. so i was confused. i thought they were the same as well. thanks for the clarification guys!

another thing, johnny cash, you said that the 3/10 year ban is only applicable if the 'out of status'/'unlawful presence' spouse of a USC left the country even with an approved AP. what if that spouse in addition with an approved AP, left the country after s/he received his/her conditional GC? will the 3/10 year ban still apply? or not anymore since s/he has a GC -- even if it's only conditional.
Click to expand...

Once being granted a green card (conditional or unconditional – doesn’t matter) a person can travel freely. No bars apply and no Advanced Parole needed.
 
Though you are already given answer on your question, but let me tell you one more time. Once a green card is granted (approval of I-485) whether for conditional green card or unconditional green card, all the disturbing issues become completely MUTE (they don't matter anymore), such as overstaying and working without INS permission in the past, violation of other immigration laws, etc. So obviously, 3/10 yrs bar does get out of the picture completely, once for good.

Further, once an alien's application for Adjustment of Status has already been approved, s/he will not be granted for an Advance Parole. Because Advance Parole is granted for those who have pending I-485, and not for those whose I-485 has already been adjudicated. Besides, why a person would even try to obtain AP if his/her I-485 has already been approved? No brainer. However, an alien must need to obtain a Reentry Permit if s/he would believe that s/he would be out of the country more than a year despite of being a green card holder.
 
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