Legal status until AOS Pending

[User778899]

I am a citizen and my spouse entered legally on a visa waiver. We decided to get married. But because it wasn't planned, I had to save up for the paperwork which took a month.

My spouse has overstayed 30 days so far and we sent in our AOS paperwork. Now waiting for the acceptance letter.

What is his legal status during this time? I'm worried he might be deported while we wait. When is the fear of deportation over? What do you show an officer to prove you are pending etc?

Thank you

[azblk]

He can be deported at anytime but the odds of that happening are very very small. Unless inadvertently getting caught in an ICE raid you spouse is very low on the totem pole.

[Tezza]

I am a citizen and my spouse entered legally on a visa waiver. We decided to get married. But because it wasn't planned, I had to save up for the paperwork which took a month.

My spouse has overstayed 30 days so far and we sent in our AOS paperwork. Now waiting for the acceptance letter.

What is his legal status during this time? I'm worried he might be deported while we wait. When is the fear of deportation over? What do you show an officer to prove you are pending etc?

Thank you

This is something that many people question. The most simple answer is (and contrary to popular belief) that if you apply when in unlawful status, the action of applying for adjustment of status doesn't give you legal status. I found this information directly from the USCIS website.

However, an immediate relative of a USC is able to adjust status even if they have overstayed, as the unlawful period of stay is forgiven upon approval of permanent legal status.

But the person who has overstayed continues to be out of legal status from the time their visa/VWP expires, to the time they are granted their green card (legal permanent resident card). So technically, this person will remain deportable until the process is finalized. Generally a person that overstays less than 180 days isn't of much significance to the authorities anyway, so you shouldn't worry too much and ICE usually target people with orders for removal already placed upon them, rather than target people who are going through adjustment proceedings, although this isn't unheard of.

USCIS have the authority to adjudicate an immediate relative whether they overstayed or not, and because of this ICE tends to leave you alone (but it doesn't mean if you were accidentally picked up by an immigration agent, or arrested by some other officer for another crime, that you wouldn't be deported). If after the AOS application, USCIS decide to deny you, it's at this point they will refer your information to ICE, not before.

So all in all, don't worry too much about it. If you are stopped by a regular law enforcement officer, the I-797C Notice of Action should be enough to show them the situation. Once you reach the stage of having your employment authorization document and SSN, you can then get a drivers licence which should ensure no issues of immigrant status are questioned.

[newacct]

This is something that many people question. The most simple answer is (and contrary to popular belief) that if you apply when in unlawful status, the action of applying for adjustment of status doesn't give you legal status. I found this information directly from the USCIS website.

This is true no matter if you are in status or not when you file AOS. A pending application doesn't give you status. Even if you file AOS when in status, when your status ends, you are still out of status.

But the person who has overstayed continues to be out of legal status from the time their visa/VWP expires, to the time they are granted their green card (legal permanent resident card). So technically, this person will remain deportable until the process is finalized. Generally a person that overstays less than 180 days isn't of much significance to the authorities anyway, so you shouldn't worry too much and ICE usually target people with orders for removal already placed upon them, rather than target people who are going through adjustment proceedings, although this isn't unheard of.

Again, this is true no matter if you are in status or not when you file AOS. Even if you file AOS when in status, when your status ends, you are out of status and deportable even if you have a pending AOS. So this is actually quite common when doing AOS (e.g. 100% of people adjusting status from K1 are out of status for a period of time during AOS, since K1 status only lasts 90 days, and AOS often takes a year). They don't usually deport people who have a pending AOS, but no rule prohibits them from doing it. People who entered on a visa can file AOS with the immigration judge in deportation proceedings, but people who entered on VWP don't get a hearing and can be deported directly.

[F&R]

What are the legal documents you need to bring with you if you are traveling outside US? while AOS is still pending but you only have an approved advance parole? did you experienced any difficulty coming back to US?Second question and how long will the interview for green card be scheduled upon receiving the advance parole. thank u