Being out of Status and AOS

[Dart60]

q

[azblk]

My SEVIS number was terminated on Sep 2017. Got married to a LPR on Dec 2017. On March 2018 concurrent filed I-140 (NIW) , I-485, I-756 and I-131 before I reached to 180 unlawful presence (INA 245 (K)). We also filed form I-130 around the same time based on my marriage. I would be appreciated if someone can answer my questions:

1. Can I submit a new I-485 based on my marriage if I-140 or I-485 denied and my priority date would be current at that time?
2. Can I do "Transfer of Underlying Basis" at the time that my priority date would be current for family basis and my I-485 would be still pending based on my NIW? Or I'm not eligible to do that, because I was out of status after my SEVIS termination.
3. Do the counting of unlawful presence stop after I filed I-485 and I would not pass 180 days, and be safe to use advanced parole?

1. You do NOT qualify to file i-485 based on marriage to LPR as you are already out of status. The USCIS will happily take your money and then deny the application. Now if your spouse naturalized, it would change the equation as you would be married to a USC and being out of status is not a problem.
2. Go back to 1.
3. Yes . Counting of unlawful presence stops when they received your case ( priority date). When using AP there is always a risk that they will not allow you to renter but it is generally a low risk. The thing I would worry about the most is your case being denied when you are out of the country as it invalidates your AP, this will leave you with no way back in to appeal or reopen.

[newacct]

3. Do the counting of unlawful presence stop after I filed I-485 and I would not pass 180 days, and be safe to use advanced parole?

Yes, "unlawful presence" does not accrue while I-485 is pending, but you almost certainly do not have any "unlawful presence" to begin with. You said SEVIS which means you were in F or J status, and people in F or J status are admitted for "D/S" on their I-94s, so you cannot stay past the date on your I-94 no matter how long you stay. You would only start to accrue "unlawful presence" if either 1) an immigration judge makes a final order against you in deportation proceedings, or 2) you apply to USCIS for some benefit and they deny it along with a determination that you are out of status.

Second, how much "unlawful presence" you may have is not relevant to the ability to leave and re-enter on AP.

[UScitizenFilingforspouse]

My SEVIS number was terminated on Sep 2017. Got married to a LPR on Dec 2017. On March 2018 concurrent filed I-140 (NIW) , I-485, I-756 and I-131 before I reached to 180 unlawful presence (INA 245 (K)). We also filed form I-130 around the same time based on my marriage. I would be appreciated if someone can answer my questions:

1. Can I submit a new I-485 based on my marriage if I-140 or I-485 denied and my priority date would be current at that time?
2. Can I do "Transfer of Underlying Basis" at the time that my priority date would be current for family basis and my I-485 would be still pending based on my NIW? Or I'm not eligible to do that, because I was out of status after my SEVIS termination.
3. Do the counting of unlawful presence stop after I filed I-485 and I would not pass 180 days, and be safe to use advanced parole?

This link might be of interest to you. http://www.sarmientoimmigration.com/...r-thai-client/

[Dart60]

Yes, "unlawful presence" does not accrue while I-485 is pending, but you almost certainly do not have any "unlawful presence" to begin with. You said SEVIS which means you were in F or J status, and people in F or J status are admitted for "D/S" on their I-94s, so you cannot stay past the date on your I-94 no matter how long you stay. You would only start to accrue "unlawful presence" if either 1) an immigration judge makes a final order against you in deportation proceedings, or 2) you apply to USCIS for some benefit and they deny it along with a determination that you are out of status.

Thanks for your comment. Yes, I was on F1 and I don't have any of those two option that you mentioned. I found many attorneys' opinion and read some cases on F1 visa that if you get marry to LPR and out of status, you need to leave the country and wait until that your priority date would be current. I'm confused.

Second, how much "unlawful presence" you may have is not relevant to the ability to leave and re-enter on AP.

You mean that AP is work like that you have GC and cleared your unlawful presence?

[Dart60]

1. You do NOT qualify to file i-485 based on marriage to LPR as you are already out of status. The USCIS will happily take your money and then deny the application. Now if your spouse naturalized, it would change the equation as you would be married to a USC and being out of status is not a problem.
2. Go back to 1.
3. Yes . Counting of unlawful presence stops when they received your case ( priority date). When using AP there is always a risk that they will not allow you to renter but it is generally a low risk. The thing I would worry about the most is your case being denied when you are out of the country as it invalidates your AP, this will leave you with no way back in to appeal or reopen.

Thanks for your reply. She is not going to be USC very soon. What do people usually do? can I request for waiver.?

So, It doesn't matter that right now I have lawful presence and may also have at the time of "transferring" ?

Yes, you are right and it could be happen. Does AP is working like the time that you have green card and would cleared your unlawful presence in the past, 6 months or more?

[Dart60]

1. You do NOT qualify to file i-485 based on marriage to LPR as you are already out of status. The USCIS will happily take your money and then deny the application. Now if your spouse naturalized, it would change the equation as you would be married to a USC and being out of status is not a problem.
.

Is there any fine for being out of status?

After my SEVIS termination, I had been given 15 days to leave the US. I'm wondering if my counting days started after the termination or 15 days?

Is there any conflict of having two pending immigration petitions one for alien worker (I-140) and one for alien relative (I-130)?

[azblk]

Thanks for your reply. She is not going to be USC very soon. What do people usually do? can I request for waiver.?

So, It doesn't matter that right now I have lawful presence and may also have at the time of "transferring" ?

Yes, you are right and it could be happen. Does AP is working like the time that you have green card and would cleared your unlawful presence in the past, 6 months or more?

Waivers are for grounds of inadmissibility. You are not inadmissible - you just cant AOS. You are just fine to do consular processing but you would have to leave the country. Since you were on F1 or J1 status, it is unlikely you have any unlawful presence anyway if your i-94 has "admitted D/S".

If I was in your shoes I would wait out my i-140 application. If it is denied or if i-130 priority date becomes current before i-140 is approved, then you can pursue the i-130 at this point.

[newacct]

You mean that AP is work like that you have GC and cleared your unlawful presence?

No. Nothing "clears your unlawful presence". Entry on AP is technically at the discretion of the officer, but there's no reason to believe that whether you have unlawful presence or not affects the officer's decision.

If you leave on AP, it doesn't trigger a ban even if you have years of unlawful presence (whereas normally leaving would trigger a ban), so it won't cause your AOS to be denied based on a ban.

- - - Updated - - -

Is there any fine for being out of status?

There is no fine.

After my SEVIS termination, I had been given 15 days to leave the US. I'm wondering if my counting days started after the termination or 15 days?

The manuals seem to say that you have to apply for some benefit to USCIS and get a denial along with a determination of being out of status for unlawful presence to start accruing. I don't think being notified of being out of status without you applying for anything counts, but it's unclear.

Is there any conflict of having two pending immigration petitions one for alien worker (I-140) and one for alien relative (I-130)?

No

[Dart60]

The manuals seem to say that you have to apply for some benefit to USCIS and get a denial along with a determination of being out of status for unlawful presence to start accruing. I don't think being notified of being out of status without you applying for anything counts, but it's unclear.

Thanks. I found this info on USCIS.com about time of unlawful immigration status . On number 14 and 15 it's mentioned about F1 visa.

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

[Dart60]

Waivers are for grounds of inadmissibility. You are not inadmissible - you just cant AOS. You are just fine to do consular processing but you would have to leave the country. Since you were on F1 or J1 status, it is unlikely you have any unlawful presence anyway if your i-94 has "admitted D/S".

If I was in your shoes I would wait out my i-140 application. If it is denied or if i-130 priority date becomes current before i-140 is approved, then you can pursue the i-130 at this point.

Could you please check the following link which is discussed about the time of unlawful presence for F1 visa on number 14 and 15.

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

Right. I'm thinking to do that. Last week I went for finger print and looking to find a job. I know that USCIS would send me RFE about my employment status and if I don't have it my i140 or or i485 would be denied. Hopefully find a job or my priority date for i130 would be current at that time. But need to be sure that I'm qualify or not.

[azblk]

Could you please check the following link which is discussed about the time of unlawful presence for F1 visa on number 14 and 15.

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

Right. I'm thinking to do that. Last week I went for finger print and looking to find a job. I know that USCIS would send me RFE about my employment status and if I don't have it my i140 or or i485 would be denied. Hopefully find a job or my priority date for i130 would be current at that time. But need to be sure that I'm qualify or not.

Are you using a lawyer for i-140? I thought EB2(NIW) do not need to have a job.

Nonimmigrants Admitted for Duration of Status (D/S):

If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied. Similarly, if an immigration judge makes a determination of non-immigrant status violation in exclusion, deportation or removal proceedings, unlawful presence begins to accrue the day after the immigration judges order.

Note that accrual of unlawful presence does not begin on the date that a status violation occurs, nor does it begin on the day on which removal proceedings are initiated.

[Dart60]

Are you using a lawyer for i-140? I thought EB2(NIW) do not need to have a job.

Nonimmigrants Admitted for Duration of Status (D/S):

If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied. Similarly, if an immigration judge makes a determination of non-immigrant status violation in exclusion, deportation or removal proceedings, unlawful presence begins to accrue the day after the immigration judges order.

Note that accrual of unlawful presence does not begin on the date that a status violation occurs, nor does it begin on the day on which removal proceedings are initiated.

Yes, I have a lawyer only for I 140. NIW is self petition but I have been told that USCIS would ulultimately send RFE for employment status for both I 140 and I 485. In my i140 package, mentioned that I'm looking for a job.

My understanding of the paragraph is that : it's for the time that you have your non-immigrant status and while USCIS adjusting your request, you status being violated and your days counted after case denial.

But in my case, I had already obtained my lawful presence and afterward I filed i140 and I 485 concurrently based on INA 245 (k) which allows you to be out of status for up to 180 days and do AOS based I140.

[newacct]

Could you please check the following link which is discussed about the time of unlawful presence for F1 visa on number 14 and 15.

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

Right. I'm thinking to do that. Last week I went for finger print and looking to find a job. I know that USCIS would send me RFE about my employment status and if I don't have it my i140 or or i485 would be denied. Hopefully find a job or my priority date for i130 would be current at that time. But need to be sure that I'm qualify or not.

That chapter is about the bar to AOS for having ever been in "unlawful status", which is a completely different thing from "unlawful presence". You likely have accrued no "unlawful presence" so far, but you are out of status. "Unlawful presence" is a term that is used in the context of the 3-year or 10-year bans triggered when you leave the US, and it is not generally relevant to AOS (which is applied from within the US). This chapter of the USCIS Adjudicator's Field Manual talks about when one accrues "unlawful presence" and what is the difference between "unlawful status" and "unlawful presence". But again, maybe you have been using the terminology wrong, but whether you have "unlawful presence" or not is not really relevant if you are doing AOS in the US; it would only be important if you abandon AOS or find out you can't do AOS and you need to do Consular Processing abroad, which requires leaving the US.

However, whether you are out of "status", or have ever been out of status (even if you have no "unlawful presence"), is relevant to your AOS. The fact that you are out of status is why you are not eligible for AOS based on your spouse's petition as a spouse of a permanent resident (F2A category). Only Immediate Relatives (spouses, unmarried under-21 children, and parents of US citizens) and a few other special situations are exempted from the bar to AOS for being out of status. So even when the USCIS filing date for AOS for F2A is current, you cannot file AOS. You might be able to leave the US and do Consular Processing abroad for your F2A, but that would bring up issues of whether you had "unlawful presence" and whether you would trigger a ban upon leaving. When your spouse becomes a citizen, you would move into the Immediate Relative category and you would immediately be able to file AOS as whether you are out of status or not no longer matters for AOS in that category.

As for your employment-based petition, as you have mentioned, you are exempt from the bar to AOS for being out of status in an employment-based category as long as you have been out of status or illegally working for less than 180 days since the most recent entry (245(k)). Again, this is "status" not "unlawful presence", so the fact that you might not have accrued "unlawful presence" is not relevant. It's good that you filed your I-485 before you had been out of "status" for 180 days. The days of "out of status" for the purposes of 245(k) stops counting when you file I-485, but if you illegally work, that counts both before and after the I-485 filing, so make sure you aren't illegally working.

If your employment-based petition and AOS get denied, your remaining options would be either 1) leave the US and do Consular Processing in F2A, since you can't AOS (in this case you would have to figure out whether you have accrued "unlawful presence", which determines whether you would trigger a ban upon leaving), or 2) stay in the US illegally until your spouse naturalizes, and then file AOS, hoping that you don't get deported before that happens.

[azblk]

My understanding of the paragraph is that : it's for the time that you have your non-immigrant status and while USCIS adjusting your request, you status being violated and your days counted after case denial.

But in my case, I had already obtained my lawful presence and afterward I filed i140 and I 485 concurrently based on INA 245 (k) which allows you to be out of status for up to 180 days and do AOS based I140.

No it means that you do not accrue unlawful presence until a FORMAL finding of you having violated your status is established and that counting starts the day after that finding is made. Generally there are 2 ways to make a formal finding - by the USCIS during the adjudication of a benefit or by a judge in removal proceedings. The mere act of terminating SEVIS or dropping out of school does not start the unlawful presence clock. A lot of people equate unlawful presence to out of status but these are two different things. Not every out of status situation accrues unlawful presence.

In your case it is unlikely you have any unlawful presence and will not have any unless your i-140 is denied.