HELP: I-485 denied, need to count overstay

[grye]

My I-485 (filed as spouse of LPR) was denied (April 6, 2018) because I was out of status at the time of filing (I was laid off while on L-1 visa on Jun 30, 2016). I have traveled on advance parole (AP) while waiting for I-485 approval.

My question is when the overstay starts counting?
- last I-94 with valid L-1 (Sep 30, 2017)
- last I-94 with AP (17 Jan, 2019)
- date of receiving notice of denial (April 6, 2018)
- other?

[newacct]

My I-485 (filed as spouse of LPR) was denied (April 6, 2018) because I was out of status at the time of filing (I was laid off while on L-1 visa on Jun 30, 2016). I have traveled on advance parole (AP) while waiting for I-485 approval.

My question is when the overstay starts counting?
- last I-94 with valid L-1 (Sep 30, 2017)
- last I-94 with AP (17 Jan, 2019)
- date of receiving notice of denial (April 6, 2018)
- other?

There is no technical term "overstay". Maybe you mean "unlawful presence" for the purposes of the 3-year/10-year unlawful presence ban. I would say "unlawful presence" starts counting when your I-485 is denied. "Unlawful presence" does not accrue while a non-frivolous I-485 is pending, even if it is ultimately abandoned or denied. "Unlawful presence" usually only starts accruing when you stay past the date on your I-94 (which you haven't yet); however, there is another way that "unlawful presence" can start accruing, and that is if you apply for some benefit to USCIS and they deny it along with a determination that you are out of status. I believe that your I-485 denial probably does say that you are out of status, because you are. If so, then your "unlawful presence" starts accruing then.

[kaylip]

Huh? Denied because of out of status? I thought when married or as an immediate relative, u are exempted from that. I don't understand because some persons who have been out of status for years got their application approved.

[iceman81]

Huh? Denied because of out of status? I thought when married or as an immediate relative, u are exempted from that. I don't understand because some persons who have been out of status for years got their application approved.

If you overstayed, They will forgive you when you are married to a US citizen only.

[grye]

There is no technical term "overstay". Maybe you mean "unlawful presence" for the purposes of the 3-year/10-year unlawful presence ban. I would say "unlawful presence" starts counting when your I-485 is denied. "Unlawful presence" does not accrue while a non-frivolous I-485 is pending, even if it is ultimately abandoned or denied. "Unlawful presence" usually only starts accruing when you stay past the date on your I-94 (which you haven't yet); however, there is another way that "unlawful presence" can start accruing, and that is if you apply for some benefit to USCIS and they deny it along with a determination that you are out of status. I believe that your I-485 denial probably does say that you are out of status, because you are. If so, then your "unlawful presence" starts accruing then.

Yes, I mean unlawful presence.

I didn't mention that I also applied for change of status from L-1 to B-2 just before I was laid off, which was denied later. Does this change the picture?

One might think that the root cause of "unlawful presence" is expiration of L-1 and so my "unlawful presence" should start accruing from the date on the last I-94 while admitted with valid L-1 visa, which was Sep 30, 2017. Is this reasoning justified?

[newacct]

Huh? Denied because of out of status? I thought when married or as an immediate relative, u are exempted from that. I don't understand because some persons who have been out of status for years got their application approved.

Not denied "because of" out of status. But a denial that contains a determination that you are now also out of status.

- - - Updated - - -

Yes, I mean unlawful presence.

I didn't mention that I also applied for change of status from L-1 to B-2 just before I was laid off, which was denied later. Does this change the picture?

One might think that the root cause of "unlawful presence" is expiration of L-1 and so my "unlawful presence" should start accruing from the date on the last I-94 while admitted with valid L-1 visa, which was Sep 30, 2017. Is this reasoning justified?

It doesn't change the picture, because you do not accrue "unlawful presence" as long as a timely-filed, non-frivolous Adjustment of Status, Change of Status, or Extension of Status application is pending. If you hadn't had an AOS pending, you may have started accruing "unlawful presence" when your Change of Status was denied, because the denial will probably also contain a determination that you are at that time out of status. But since you had a pending AOS, that doesn't matter and you are protected from accruing "unlawful presence" until your AOS was denied.

[grye]

It doesn't change the picture, because you do not accrue "unlawful presence" as long as a timely-filed, non-frivolous Adjustment of Status, Change of Status, or Extension of Status application is pending. If you hadn't had an AOS pending, you may have started accruing "unlawful presence" when your Change of Status was denied, because the denial will probably also contain a determination that you are at that time out of status. But since you had a pending AOS, that doesn't matter and you are protected from accruing "unlawful presence" until your AOS was denied.

Thank you for the clarification.
I would highly appreciate if you could also point to the law (policy manual) that confirms your point.
My lawyer believes that unlawful presence in my case started accruing from the last I-94 of the L-1.

[newacct]

Thank you for the clarification.
I would highly appreciate if you could also point to the law (policy manual) that confirms your point.
My lawyer believes that unlawful presence in my case started accruing from the last I-94 of the L-1.

This section of the USCIS Adujicator's Field Manual describes how someone with a pending AOS does not accrue unlawful presence while it is pending (even if later denied), and the next part describes how someone with a pending EOS or COS does not accrue unlawful presence while it is pending.

This section of the Department of State Foreign Affairs Manual also describes how someone with a pending EOS/COS or AOS does not accrue unlawful presence while it is pending.

[grye]

This section of the USCIS Adujicator's Field Manual describes how someone with a pending AOS does not accrue unlawful presence while it is pending (even if later denied), and the next part describes how someone with a pending EOS or COS does not accrue unlawful presence while it is pending.

This section of the Department of State Foreign Affairs Manual also describes how someone with a pending EOS/COS or AOS does not accrue unlawful presence while it is pending.

Thank you very much. I truly appreciate your help.

[grye]

One more question:
Is my adjustment of status application considered as "properly filed"? It was filed during the authorized stay of the COS application which was later denied.

[azblk]

One more question:
Is my adjustment of status application considered as "properly filed"? It was filed during the authorized stay of the COS application which was later denied.

Yes. When you receive a i-797C NOA - hen it is considered properly filed

[grye]

Yes. When you receive a i-797C NOA - hen it is considered properly filed

Is this defined by law or just an observation?

[azblk]

Is this defined by law or just an observation?

procedure. It is in policy manual.

[grye]

procedure. It is in policy manual.

The policy manual says:
If USCIS denies the EOS or COS application, then the foreign national is generally considered to be in unlawful immigration status as of the expiration of the foreign national?s current nonimmigrant status and likewise on the date the adjustment application is filed. In this instance, the INA 245(c)(2) bar would apply, unless an exemption is available.

Doesn't this mean that I was in unlawful immigration status when filing the adjustment of status application?

[azblk]

The policy manual says:
If USCIS denies the EOS or COS application, then the foreign national is generally considered to be in unlawful immigration status as of the expiration of the foreign national?s current nonimmigrant status and likewise on the date the adjustment application is filed. In this instance, the INA 245(c)(2) bar would apply, unless an exemption is available.

Doesn't this mean that I was in unlawful immigration status when filing the adjustment of status application?

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter3.html