Help!! Am i inadmissible?

[sazam]

Hi all. In a bit of a predicament here, and I've scoured forums, articles and even consulted a few attorneys, and I just can't get one definite answer on my situation. Would appreciate if you guys can help me out, and I apologise in advance for the intricate details provided below:

- I was in the US with my sister on a B2 visa, with the I-94 valid from Jan 2010 to Jun 2010.
- While in the US, my sister and I decided to file for a COS so that we can attend university, somewhere around April of 2010.
- We hired an attorney, and set about obtaining the necessary documents from the school (both of us got accepted to the same university), to file for the COS from B2 to F1.
- However, due to a clerical error, the I20s for both of us were delayed in late May, and our attorney timely filed for an extension (EOS) of both our I-94s.
- We filed for the COS in July of 2010, after the expiry date of the I-94, but we were assured this was alright because an EOS was timely filed.
- In August, we received notification from USCIS that the EOS for both were denied, erroneously stating that we were attempting to change from J1 Visa to B2 visa, and had not provided the necessary documentation for such an application.
- Our attorney immediately reverted with an appeal (290B), requesting for the USCIS to reconsider the extension on the grounds that the denial was based on erroneous grounds.
- On March 9 2011, the 290B filed against the EOS denial in August was denied.
- HOWEVER, ON THE VERY SAME DAY, THE EXTENSION OF STATUS APPLICATION (EOS) WAS APPROVED FOR BOTH.
- My sister's COS to F1 was approved in a little over a month in early April 2011.
- After not having received a response from USCIS on my COS, and due to family pressure, I chose to voluntarily depart for my home country in October of 2011 and reapply at the consulate there.
- In December of 2011, I received email notification that my COS application was denied, stating that I had untimely filed the COS from B2 to F1 back in July of 2010, after my I-94 had expired a month prior, in June 2010.
- My attorney at the time in the US, advised that he can file a Motion to Reopen (MTR), on the grounds that I had timely filed for an extension of my I-94 BEFORE untimely filing for a COS.
- The MTR was denied in April 2012.
- I now reside in my home country, but have many friends in the US who I'd like to visit and also travel to a few places in the US.

As mentioned above, as this case is quite peculiar I have not been able to get a straight answer from forums and even the three attorney's whom I've spoken to.

Therefore, my question is - AM I IN FACT SUBJECT TO THE 10 YEAR BAR, AS I HAD UNTIMELY FILED FOR A COS, EVEN AFTER TIMELY FILING FOR AN EXTENSION? (I-94 expired in June 2010 and I voluntarily departed in Oct 2011, hence the possibility of a 10 yr bar).

ALSO THE FACT THAT THE 290B FOR THE EXTENSION WAS DENIED, AND YET THE EXTENSION (EOS) ITSELF BEING APPROVED ON THE SAME DAY ALSO MAKES THINGS VERY CONFUSING.

WAS MY COS SIMPLY DENIED DUE TO MY LEAVING THE US, ON THE GROUNDS OF ABANDONMENT? THEREFORE, AS I WAS TECHNICALLY WAITING ON A DECISION, AND AS MY EXTENSION OF STATUS WAS APPROVED EVEN THOUGH THE APPEAL WAS DENIED, WAS I ACTUALLY ACCRUING UNLAWFUL PRESENCE OR COVERED UNDER THE EQUITABLE TOLLING PROVISION?

I would really appreciate if you guys can help me out, as it looks like I've stumped the attorney's I've spoken to. If there is in fact a bar, I'd have to resort to filing a 212d3 waiver to travel back to the US, but I'd definitely like to make sure if I am in fact inadmissible before going down that route.

Thank you all.

[Trinity71]

Help!! Am i inadmissible?

No one can give you a direct answer for any of this because the circumstances are very convoluted. So to break it down to your specific question, I think your asking if you would be able to get a visitor visa to come here. The COS filing and outcome is irrelevant at this point so let's start with the ban.

You should not have a ban because your extension of stay was approved and you left the U.S. before that expired.

Having stated that, you said you want to come here and visit friends and do some traveling. However, the last time you came here for those things, you filed for COS. That could stop the consulate from approving your visa. They will assume your a risk for trying to stay longer, file COS or immigrate. If your sister is still here that would be another red flag as you have family here meaning you have some sort of support system here that could assist you if you did try and stay. All you can do is try and apply. Good Luck

This is my opinion and not legal advice. Use of this information is strictly at your own risk.

[sazam]

No one can give you a direct answer for any of this because the circumstances are very convoluted. So to break it down to your specific question, I think your asking if you would be able to get a visitor visa to come here. The COS filing and outcome is irrelevant at this point so let's start with the ban.

You should not have a ban because your extension of stay was approved and you left the U.S. before that expired.

Having stated that, you said you want to come here and visit friends and do some traveling. However, the last time you came here for those things, you filed for COS. That could stop the consulate from approving your visa. They will assume your a risk for trying to stay longer, file COS or immigrate. If your sister is still here that would be another red flag as you have family here meaning you have some sort of support system here that could assist you if you did try and stay. All you can do is try and apply. Good Luck

This is my opinion and not legal advice. Use of this information is strictly at your own risk.

Thank you very much for your reply! Yes, your right, the risk factor of me filing for a COS and/or immigrate is higher due to my actions. However, my sister after finishing university is now back in my home country with no other family residing in the US, and I believe I have sufficient "ties to home country" (businesses, family etc) to prove that I have no intent to immigrate and/or change status in the US. But then again, your right there is still a significant risk, which I'm willing to take provided that I am confident that there is no inadmissibility issue also.

However:

1) What is the general understanding on the basis of an EOS being first denied, appealed and then approved, IF the appeal in itself was denied? Does the ruling on the EOS (approved) supersede the decision on the appeal (denied)?

2) DOES THE EOS APPROVAL NEGATE THE UNTIMELY FILING OF THE COS AS IT NOW FALLS WITHIN THE PERIOD COVERED BY THE APPROVED EXTENSION?

3) As my COS was probably denied on the grounds that I had abandoned my application by leaving the country, does the abandonment effect the tolling of unlawful presence, as I left before a decision was taken on my case?

Thanks again for your reply, and shall truly appreciate all the help I can get.

[Trinity71]

Thank you very much for your reply! Yes, your right, the risk factor of me filing for a COS and/or immigrate is higher due to my actions. However, my sister after finishing university is now back in my home country with no other family residing in the US, and I believe I have sufficient "ties to home country" (businesses, family etc) to prove that I have no intent to immigrate and/or change status in the US. But then again, your right there is still a significant risk, which I'm willing to take provided that I am confident that there is no inadmissibility issue also.

However:

1) What is the general understanding on the basis of an EOS being first denied, appealed and then approved, IF the appeal in itself was denied? Does the ruling on the EOS (approved) supersede the decision on the appeal (denied)?

2) DOES THE EOS APPROVAL NEGATE THE UNTIMELY FILING OF THE COS AS IT NOW FALLS WITHIN THE PERIOD COVERED BY THE APPROVED EXTENSION?

3) As my COS was probably denied on the grounds that I had abandoned my application by leaving the country, does the abandonment effect the tolling of unlawful presence, as I left before a decision was taken on my case?

Thanks again for your reply, and shall truly appreciate all the help I can get.

All that matters is that the EOS was approved. The logistics of it ( the original denial, appeal etc. do not matter) The extension was granted so you were never considered out of status and you left before the extension expired. If the COS was denied due to you leaving the country which could be the reason, it still would not have caused unlawful presence. You only accrue unlawful presence if you are outside your original I-94 dates without an extension. Once you are approved for an extension for example 6 months... that 6 month time frame would now be your updated I-94 dates.

Trinity