I-485 72.b Will marking "yes" make me ineligible for AOS (marriage)?

[emigrantas]

I am applying for Adjustment of Status (marriage) green card. I got everything down, but the only question I am not sure about is if I will be ineligible for it by answering "yes" to 72.b. I had left the US via an airport (Visa overstayer) shortly after high school but came back shortly (1-2 months) after on a visa waiver, airport again (overstayed until I got DACA since my initial arrival was well before I was an adult). I was approved for DACA multiple times (even with this question being answered in a similar manner) so I am wondering if this would just be ignored. If I do mark yes, do I need to explain that it was a short leave?
Any and all help is extremely appreciated!

[JunkMart]

Hi. It depends on whether you are adjusting status based on marriage to a USC or based on marriage to LPR. If you are adjusting based on marriage to a USC, then answering yes to 72b will not make you ineligible because overstay is forgiven for the spouse of a USC. Even if you are adjusting based on marriage to an LPR, you should still be honest as you are signing under penalty of perjury, which may be even worse than the overstay. Just tell the truth, ALWAYS!

EDIT: Research overstay waivers. You may qualify for one even if you are married to LPR. Seek advice from a qualified immigration attorney.

[newacct]

I am applying for Adjustment of Status (marriage) green card. I got everything down, but the only question I am not sure about is if I will be ineligible for it by answering "yes" to 72.b. I had left the US via an airport (Visa overstayer) shortly after high school but came back shortly (1-2 months) after on a visa waiver, airport again (overstayed until I got DACA since my initial arrival was well before I was an adult). I was approved for DACA multiple times (even with this question being answered in a similar manner) so I am wondering if this would just be ignored. If I do mark yes, do I need to explain that it was a short leave?
Any and all help is extremely appreciated!

Part 8 #72b is about whether you have accrued 1 year of "unlawful presence" and then left the US. Since you have not left the US after your second stay, this can only be about your first stay. Also note that you do not accrue "unlawful presence" for the purposes of this ban while under 18. So you would only answer "Yes" to this question if you had stayed past the date on your I-94 on your first stay, after you turned 18 (and after 1997), for at least 1 year (i.e. you left after you turned 19). Was that the case? Also, the I-94 for some statuses have "D/S" instead of a date; what visa did you enter the US on on your first stay?

Leaving the US after accruing 1 year of "unlawful presence" triggers a 10-year ban. It won't have any effect on your AOS if it has been more than 10 years after you left the US that first time.

[emigrantas]

Hi. It depends on whether you are adjusting status based on marriage to a USC or based on marriage to LPR. If you are adjusting based on marriage to a USC, then answering yes to 72b will not make you ineligible because overstay is forgiven for the spouse of a USC. Even if you are adjusting based on marriage to an LPR, you should still be honest as you are signing under penalty of perjury, which may be even worse than the overstay. Just tell the truth, ALWAYS!

EDIT: Research overstay waivers. You may qualify for one even if you are married to LPR. Seek advice from a qualified immigration attorney.

Hello, yes I am adjusting based on marriage to USC. I am going to 100% honest, especially for documentation like this. Just wondering if this needs to be thoroughly explained (even though it did not seem to affect me when I applied for DACA)

[emigrantas]

Part 8 #72b is about whether you have accrued 1 year of "unlawful presence" and then left the US. Since you have not left the US after your second stay, this can only be about your first stay. Also note that you do not accrue "unlawful presence" for the purposes of this ban while under 18. So you would only answer "Yes" to this question if you had stayed past the date on your I-94 on your first stay, after you turned 18 (and after 1997), for at least 1 year (i.e. you left after you turned 19). Was that the case? Also, the I-94 for some statuses have "D/S" instead of a date; what visa did you enter the US on on your first stay?

Leaving the US after accruing 1 year of "unlawful presence" triggers a 10-year ban. It won't have any effect on your AOS if it has been more than 10 years after you left the US that first time.

Yes, this is exactly about my first stay (I came after 1997). I left right after turning 19. My initial I-94 did have a date to leave by but I did not leave since I was a minor. My first stay was a tourist visa (B-2).

Upon entering the second time, I was not issued an I-94, but there was a date in my passport stamp when to leave by.

Am I wrong in assuming this is nothing to worry about since my DACA application was accepted (and renewed multiple times)?

Thank you for any and all help in advance!!

[emigrantas]

JunkMart
Hello, yes I am adjusting based on marriage to USC. I am going to 100% honest, especially for documentation like this. Just wondering if this needs to be thoroughly explained (even though it did not seem to affect me when I applied for DACA)

[emigrantas]

newacct
Yes, this is exactly about my first stay (I came after 1997). I left right after turning 19. My initial I-94 did have a date to leave by but I did not leave since I was a minor. My first stay was a tourist visa (B-2).

Upon entering the second time, I was not issued an I-94, but there was a date in my passport stamp when to leave by.

Am I wrong in assuming this is nothing to worry about since my DACA application was accepted (and renewed multiple times)?

Thank you for any and all help in advance!!

[newacct]

newacct
Yes, this is exactly about my first stay (I came after 1997). I left right after turning 19. My initial I-94 did have a date to leave by but I did not leave since I was a minor. My first stay was a tourist visa (B-2).

Upon entering the second time, I was not issued an I-94, but there was a date in my passport stamp when to leave by.

Am I wrong in assuming this is nothing to worry about since my DACA application was accepted (and renewed multiple times)?

Thank you for any and all help in advance!!

Then you should answer Yes. If it has been 10 years since you left the first time, you should be fine. (Though there might still be questions about how you were able to enter on VWP if you had a ban, and whether you may have misrepresented anything.) If it has not been 10 years, then you should wait until it has been 10 years before you file for AOS.

Whether you had DACA is not relevant.

[JunkMart]

Then you should answer Yes. If it has been 10 years since you left the first time, you should be fine. (Though there might still be questions about how you were able to enter on VWP if you had a ban, and whether you may have misrepresented anything.) If it has not been 10 years, then you should wait until it has been 10 years before you file for AOS.

Whether you had DACA is not relevant.

Please help me understand why OP should wait 10 years before filing AOS? His overstay is forgiven, is it not?

[newacct]

Please help me understand why OP should wait 10 years before filing AOS? His overstay is forgiven, is it not?

There is no such thing as being "forgiven". Overstay does not by itself cause a ban, but one is barred from AOS for having been out of status in most categories except the Immediate Relative category. In the Immediate Relative category (which the OP is in), being out of status is not relevant to AOS.

However, bans are not "forgiven". One cannot immigrate when one has a ban, unless one gets a waiver (which is very hard), and this is true for both AOS in the US and Consular Processing abroad, and no matter what category you're in. Accruing 1 year of "unlawful presence" and then leaving the US does cause a 10-year ban.

Now, this particular ban almost never comes up in relation to AOS, because in order to trigger this ban you must leave the US, so either you have not left the US, and don't have this ban (that's why people who have entered once and overstayed for years can AOS as Immediate Relatives without a waiver -- because they have not left and don't have a ban), or, if you've left the US and triggered the ban, AOS is generally not a possibility because you must be in the US and have entered legally to AOS, and you cannot get into the US legally before the ban is over unless 1) they make a mistake, or 2) you get a nonimmigrant waiver, and both of these are unlikely. In this case, it seems the OP was allowed in the second time by mistake, and that's why this situation is even coming up.

[JunkMart]

There is no such thing as being "forgiven". Overstay does not by itself cause a ban, but one is barred from AOS for having been out of status in most categories except the Immediate Relative category. In the Immediate Relative category (which the OP is in), being out of status is not relevant to AOS.

However, bans are not "forgiven". One cannot immigrate when one has a ban, unless one gets a waiver (which is very hard), and this is true for both AOS in the US and Consular Processing abroad, and no matter what category you're in. Accruing 1 year of "unlawful presence" and then leaving the US does cause a 10-year ban.

Now, this particular ban almost never comes up in relation to AOS, because in order to trigger this ban you must leave the US, so either you have not left the US, and don't have this ban (that's why people who have entered once and overstayed for years can AOS as Immediate Relatives without a waiver -- because they have not left and don't have a ban), or, if you've left the US and triggered the ban, AOS is generally not a possibility because you must be in the US and have entered legally to AOS, and you cannot get into the US legally before the ban is over unless 1) they make a mistake, or 2) you get a nonimmigrant waiver, and both of these are unlikely. In this case, it seems the OP was allowed in the second time by mistake, and that's why this situation is even coming up.

USCIS may not use the word forgiven, but it is "forgiven". I know that bans are not "forgiven", but OP doesn't have a ban, or at least he hasn't mentioned it. Lets wait and see if OP comes back with a ban before talking about it. Also, he was last inspected and allowed into the country, with no mention of a ban being in effect.

I'll reread this entire thread, but you seem to be the one saying OP should have a 10 year. But he doesn't, so whats your point?

[newacct]

USCIS may not use the word forgiven, but it is "forgiven". I know that bans are not "forgiven", but OP doesn't have a ban, or at least he hasn't mentioned it. Lets wait and see if OP comes back with a ban before talking about it. Also, he was last inspected and allowed into the country, with no mention of a ban being in effect.

I'll reread this entire thread, but you seem to be the one saying OP should have a 10 year. But he doesn't, so whats your point?

Whether someone has a ban is a matter of law. You don't need to know you have a ban to have it. Based on the facts he has mentioned said, we can determine that he triggered a 10-year ban. The OP has told us that they overstayed a B2 with a date on the I-94, for at least 1 year after they turned 18 and after 1997, before they left the US. That means they accrued at least 1 year of "unlawful presence" and then left the US, which triggers a 10-year ban under INA 212(a)(9)(B). Whether this ban is over or not, we don't know, because the OP has not mentioned how much time has passed since they left the US that first time. The fact that the OP subsequently entered with inspection does not waive their ban if they have one.

[emigrantas]

newacct
thank you for the answer. It has not quite been 10 years yet since I reentered. However, I would imagine that a 10-year ban would have to be served outside of the US, not inside. It logically makes no sense (to me, but perhaps the law is different). As I already mentioned, I was inspected at an official point of entry and stamped in. Maybe I am oversimplifying it, but it seems very contradictory to be banned from the US for 10 years while living there.

[emigrantas]

JunkMart
I do not have a ban or have not been explicitly made aware that I have a ban. I know multiple people who have left the US after overstaying and only a very small amount actually received bans. However, that was generally upon trying to reenter, not leaving. The CBP does not seem to worry much about who is leaving the US (imo) since nobody asks for anything when you are leaving the US. Had I triggered a ban, I imagine this would have caused a red flag when dealing with DACA. I was approved for it and had no issues.

[newacct]

newacct
thank you for the answer. It has not quite been 10 years yet since I reentered. However, I would imagine that a 10-year ban would have to be served outside of the US, not inside. It logically makes no sense (to me, but perhaps the law is different). As I already mentioned, I was inspected at an official point of entry and stamped in. Maybe I am oversimplifying it, but it seems very contradictory to be banned from the US for 10 years while living there.

The issue of whether the ban can be served inside the US is a little unclear. The actual language of the law seems to say that you are only inadmissible for 10 years after the departure, not inadmissible until you have been outside the US for 10 years. Page 2 of this practice pointer says that USCIS general counsel has confirmed in correspondance that the ban does run inside the US for people inside the US when the person was paroled into the US or admitted on a nonimmigrant waiver (however, you were admitted without a nonimmigrant waiver, so it does not clearly apply to you). And it mentions an unpublished AAO decision that the ban does run inside the US (however, it's unpublished, so it doesn't serve as precedent for future cases). There is another unpublished AAO decision that said the ban doesn't run inside the US, but in this case the person entered without inspection, so it is unclear whether the same logic would apply to you who entered with inspection (and again, this is unpublished, so doesn't serve as precedent); this also mentioned that in the previous AAO case the person entered with Advance Parole, which you didn't. So it's hard to predict how it would work in your case.

That you have gotten DACA doesn't tell you anything about whether you have a ban, i.e. whether you are "inadmissible" -- technically, someone who has entered the US illegally and is present in the US is inadmissible, but such people can get DACA. Even people who have a permanent inadmissibility (lifetime ban) for having accrued 1 year of unlawful presence, and then entered the US illegally again, can get DACA.