When exactly are you considered overstayed?

Overstay starts when your I-94 expires and there is NO application pending with USCIS with "latest" "receipt date" of that application as expiry date of I-94.

IF the pending application is denied, then overstay starts from day of I-94 expiry.

Types of pending application could be extension of status, change of status type.
 
Hope you guys are not getting the whole issue mixed up:
Even if your non immigrant visa expires and your I94 is still current you are still considered legal, it is only when you overstay the period on your I94 that you are considered overstay and problably become illegal.
 
I don't think they are mixing anything...but your non-immigrant status is not valid anymore when you apply for adjustment of status. You will be in an authorized stay by the Attorney General. That is why you need (if you are not H1B or other dual intent visa) an Advance Parole to re-enter the US after you are in AOS because your non-immigrant visa even is not expired is not valid anymore.

If you pass the period of authorized stay by your I-94 you start acruing illegal presence but the clock stop when you apply for adjustment of status or another pending application that give you a period of authorize stay (does not count for I-130 application that does not give you any status). Anyway the time that you were overstay is forgiven if you are an immediate relative ONLY for the purpose to still be eligible to apply for AOS, is not forgiven for other terms, like even if you have an approved Advance Parole you can be bar for re-enter the country if you overstay more than 180 days, etc.
 
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I completely agree with Cherr and GotPR... being the immediate relative of a USC does not give you the right to overstay your I-94 date.

In general...
One is inelgibile to file I-485 if he/she overstayed the I-94 date or worked illegally. Being the IR of a USC only pardons overstay and illegal employment in order for the IR to be eligible and apply I-485 and get into a legal status.
 
I'm still kind of confused, not about what is illegal and what not, but about when my stay is being considered overstay.
Sorry if I am just being slow, but see my case for example:

My I-94 expired March 31th this year. But my ND for AOS is March 29th, which makes me legal, correct?
Still, I have stayed almost two months longer than my I-94 allowed. Have I overstayed, even though I was never really unlawfully present?
Or are you always overstaying when you stay longer than your I-94 allows?
 
patty579 said:
I'm still kind of confused, not about what is illegal and what not, but about when my stay is being considered overstay.
Sorry if I am just being slow, but see my case for example:

My I-94 expired March 31th this year. But my ND for AOS is March 29th, which makes me legal, correct?
Still, I have stayed almost two months longer than my I-94 allowed. Have I overstayed, even though I was never really unlawfully present?
Or are you always overstaying when you stay longer than your I-94 allows?
Click to expand...

You filed your AOS before your I-94 expired. This means you continued with your legal status and never overstayed.

When you stay beyond your I-94 date, it usually means you are overstaying unless you applied for AOS which gets you back in legal status. Dont worry, you are in a valid legal status now.
 
Okay, let's go again...don't worry, is kind of confusing.

In your particular case you did NOT acrue any illegal/unlawful presence nor overstayed, because you apply for adjustment of status BEFORE the expiration date of your I-94. You apply for a change of status, your status from non-immigrant to immigrant and that gives you an authorize stay. Overstay only counts if you were still as a non-immigrant with NO pending application.

Anyway, are you going to apply for I-131, is that your worry? :rolleyes:

Probably this chart will help you a little bit:
http://www.utmem.edu/international/out_of_status.html

http://www.hias.org/Immigration/Answers/overstay.pdf
 
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Thanks so much Ari and Cherr, I finally understand. How amazing! :D
Until today I thought I was overstaying!

I probably won't leave the country until I received my GC, but you're right, Cherr, it was my worry. My aunt was pretty sick and I was worrying about applying for an AP, just in case I need to go home.
Good to know that I could apply for AP, if I needed to. So thanks! :)
 
Can be confusing sometimes. I applied like one month before the expiration of my I-94 but never apply for I-131 because I was not in need of it (plus my husband was concern about the part of "no guarantee" about it), but later on we thought it could be helpful to have an AP since nobody knows when an emergency can come up, but well, we waited until the interview, everything went well.

Good luck,
 
Personal Experience, hopefully this will help

My wife's I-94 expired Dec 8th 2005. We got married Dec 6th 05.
So, technically, we were relatives before it expired :)

We didn't file for AOS until December '06.. due to many things.

So technically, she was here without any visa at all for about a year.

She was just approved for AOS to PR Today :) (see TimeLine Below)
 
Yeah, same here. I know that it is considered very safe to travel with AP, but I also think it is safest just to stay here until I get my GC.
Just praying that there won't be an emergency. And I am an optimistic person. :)
 
I was exactly starting to fill out the paper work for AP when I received my interview letter...I really did not want to spend that amount of money.
 
My wife overstayed for a long time before we got married (I'm a USC). Her mom is very sick and she wishes to see her. Will she have trouble re-entering the US with her advance parole? I will be travelling with her and now I'm worried that she might not be admitted back into the US. Anyone have similar experiences??? Please share. Thank you
 
MaxiumVelocity said:
My wife overstayed for a long time before we got married (I'm a USC). Her mom is very sick and she wishes to see her. Will she have trouble re-entering the US with her advance parole? I will be travelling with her and now I'm worried that she might not be admitted back into the US. Anyone have similar experiences??? Please share. Thank you
Click to expand...

Yes. She will have trouble using AP (i have read of rare overstay cases (on the EB GC forum) who did not have problem using AP, and cannot guarantee the same for you). This is a tough call to make. You know the situation better. If it wasnt a real emergency, i would ask you guys to wait till her GC is approved. It is your call
 
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