overstayed or not?

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tjgraficas

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I filed I-485/I-130 for my wife at the end of october 2007 and got receipt notices on 11/2/07.

My wife's I-94 expired back on 6/14/2007

My understanding is that the overstayed time stops once I-485/AOS is filed.

I am just concern about the 180 day overstayed rule, since she just got her AP/I-131 and I read about not using it if she overstayed for more than 180 days.

thanks for any comments.
 
tjgraficas said:
My understanding is that the overstayed time stops once I-485/AOS is filed. I am just concern about the 180 day overstayed rule, since she just got her AP/I-131 and I read about not using it if she overstayed for more than 180 days.
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I believe you should be fine, but in all circumstances when you are worried about triggering the 3/10-year re-entry bars, you should consult with an attorney just to be safe.
 
Already consulted an attorney

tjgraficas said:
I filed I-485/I-130 for my wife at the end of october 2007 and got receipt notices on 11/2/07.

My wife's I-94 expired back on 6/14/2007

My understanding is that the overstayed time stops once I-485/AOS is filed.

I am just concern about the 180 day overstayed rule, since she just got her AP/I-131 and I read about not using it if she overstayed for more than 180 days.

thanks for any comments.
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I had a discussion about this with few good immigration attorneys in the past. The answer is, one should not travel on advance parole, absolutely not. The IO at the POE can always deny you the entry and can out a 10 year bar. Definitely don't want that. It's an overstay case so wait for the green card to arrive and traveling on a proper GC would be the appropriate way.
 
Thanks for your comments.

I talk to uscis today,and basically said that the overstayed time stops once I-485/AOS is filed.

with this my wife is under the 180 days, since I-94 expired on 6/14/07 and I-485 was filed on 11/2/07.

We are still waiting for our Interview and her EAD.

Is just so confusing since an IO at a POE could have a different point of view and then ban her entrance.



Thanks
 
if she absolutely MUST travel, she can if her overstay is less than a 180 days. However, I wouldn't.
 
tjgraficas said:
Is just so confusing since an IO at a POE could have a different point of view and then ban her entrance.
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Actually, they cannot. The 3/10-year bars are non-discretionary and cannot be arbitrarily applied nor waived.

If you have overstayed for less than 180 days, they cannot be applied. Period. If you have overstayed for 180-364 days and then leave the US, then the 3-year bar IS applied. Over 365 days, the 10-year bar is applied.

There is absolutely no discretion here, and I'm amazed that anyone would claim otherwise. Like Tripe Citizen said, you got this from good attorneys? :)
 
TheRealCanadian said:
Actually, they cannot. The 3/10-year bars are non-discretionary and cannot be arbitrarily applied nor waived.

If you have overstayed for less than 180 days, they cannot be applied. Period. If you have overstayed for 180-364 days and then leave the US, then the 3-year bar IS applied. Over 365 days, the 10-year bar is applied.

There is absolutely no discretion here, and I'm amazed that anyone would claim otherwise. Like Tripe Citizen said, you got this from good attorneys? :)
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Completely Agree.

On a side note: You must now, that NOBODY is 100% assured entry with Advance Parole.
 
Missing the point

TheRealCanadian said:
Actually, they cannot. The 3/10-year bars are non-discretionary and cannot be arbitrarily applied nor waived.

If you have overstayed for less than 180 days, they cannot be applied. Period. If you have overstayed for 180-364 days and then leave the US, then the 3-year bar IS applied. Over 365 days, the 10-year bar is applied.

There is absolutely no discretion here, and I'm amazed that anyone would claim otherwise. Like Tripe Citizen said, you got this from good attorneys? :)
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You are missing the point my friend. What I meant by good attorneys is, there are lot of attorneys out there who would think that even with over stay it's ok to leave the country on AP. I'm sure it's wise to have your GC in your hands before you think of leaving the country & try to enter on AP, that's all. Hope I am clear.
 
Atlanta_Brother said:
there are lot of attorneys out there who would think that even with over stay it's ok to leave the country on AP.
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The mark of a good attorney is knowing when it is OK, and when it isn't. Clearly, your attorney does you no service if you are subject to the 3/10 year bars and does not caution you. I question how much value an attorney is, if he/she is excessively cautious and suggests that one does not travel at all on AP.
 
tjgraficas,

your question is probably best addressed by the Pearson memo, even though it mainly addresses "timely filed" applications before the person's status expired. As far as I know, the unlawful presence provisions in the INA also address "timely filed" applications when "tolling" the period one has applied for AOS. However, see this USCIS document, which is, however, specific to 245(i) cases, but it does state that unlawful presence does not accrue while an AOS application is pending. In summary, I haven't read a definite answer to your question.

The Pearson memo does mention that if an untimely filed C/S or E/S is denied, the entire period from I-94 expiration will be considered as being unlawfully present. That fact alone I think would make it quite dangerous to leave the country while the AOS is pending; if it is denied for whatever reason (a notice that you didn't receive, etc), according to this your wife would be unlawfully present the entire time since the I-94 expired, and would have trouble re-entering and appealing the decision.

Someone correct me if I misintepreted the Pearson memo on this, please.
 
austriacus said:
The Pearson memo does mention that if an untimely filed C/S or E/S is denied, the entire period from I-94 expiration will be considered as being unlawfully present. That fact alone I think would make it quite dangerous to leave the country while the AOS is pending; if it is denied for whatever reason (a notice that you didn't receive, etc), according to this your wife would be unlawfully present the entire time since the I-94 expired, and would have trouble re-entering and appealing the decision.
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I would be hesitant to draw any parallels from the EOS/COS process for non-immigrant status to that of AOS. In the former, there is the notion of being "timely filed" (ie. before the existing status expires) and USCIS has the discretion to waive that requirement.

For AOS, the situation is different. "Timely filing" only really applies to FB and EB cases; in FB you have no grace period once the existing non-immigrant status expires, and in EB you have 180 days thanks to 245k. There's no discretion for USCIS; if you are an FB case and file the day after your non-immigrant status expires, the INA forbids USCIS from approving your case. However, for Immediate Relatives (and 245i) cases, there is no concept of "timely filing"; the INA turns around and expressly forbids USCIS from denying your case on this basis.

Triple Citizen said:
This I assume wasn't deliberate?
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Absolutely accidental. I doubt I have the capacity to deliberately come up with such a subtle insult. :D
 
Atlanta_Brother said:
You are missing the point my friend. What I meant by good attorneys is, there are lot of attorneys out there who would think that even with over stay it's ok to leave the country on AP. I'm sure it's wise to have your GC in your hands before you think of leaving the country & try to enter on AP, that's all. Hope I am clear.
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When one have green card, why he or she need to use AP to enter:confused:. I think even with GC approval EAD and AP becomes invalid documents.
 
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