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Thread: unlawful presense

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  1. #1

    unlawful presense

    I hope you can help me I have a situation

    I was admitted in the U.S on 16 Dec 1996, I was given a 6 month to stay , I was still under the age of 18
    On 25 June 1997 I haveattained the age 18.
    On 04/1998, I got marriedand on 08 June 1998, I filled an application I-130 and I-485 ,
    I was called for fingerprint and done that , I was called to attend an interview on 09/15/1999.
    Unfortunately my lawyer send a letter to immigration and Naturalization services that I wish to withdraw my application for adjustment of status and that I left the country on 09/01/1999 , He did not inform me that I had an appointment . INS denied my application for adjustment of status and for LPR since I did not show up. on 24 Nov 1999

    On 20 Sep 1999 , I left the U.S

    I got divorced and never went back to the U.S

    I recently applied for a Non Immigrant visa and I was asked to furnish proof of Lawfull stay in the U.S
    I requested my file and I want to send it to the U.S consulate

    My question
    My stay expired on 06/16/19996 and I filled for adjustment of status as a spouse of immediate relative , does this cancel my unlawful presence in the U.S and based on what ?


    Please send me your comments


    Thank you for all your input


    T



  2. #2
    Yes, you do not accrue "unlawful presence" while a non-frivolous Adjustment of Status application is pending, even if it is eventually denied. So for the purposes of the 9B 3-year/10-year ban, you accrued around a year of "unlawful presence" from when you turned 18 in June 1997 to when you filed I-485 in June 1998 (it's unclear whether it's above or below one year because you did not give the exact USCIS "received date" of the I-485 application).

    But all of this is irrelevant because, even if you had accrued more than 1 year of "unlawful presence", you left the US more than 10 years ago, so any 10-year ban you could have had would be long over.

    But for applying for a nonimmigrant visa, any history of past overstay, even while under 18, or past immigration applications, could be negative factors in the officer's determination of whether to give you a visa or not.

    This is my personal opinion and is not to be construed as legal advice.

  3. #3
    Thank you for your reply , I checked the dates it is less than 1 year, Is there a waiver I could request the consulate to file on my behalf

  4. #4
    Quote Originally Posted by ANAT View Post
    Thank you for your reply , I checked the dates it is less than 1 year, Is there a waiver I could request the consulate to file on my behalf
    There is no waiver because there is no ban. Even if it was more than a year, there would not be a ban now.

    This is my personal opinion and is not to be construed as legal advice.

  5. #5
    Thanks , I sent the Consulate my file and we will see what they will decide

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