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Thread: INTERESTING INFORMATION about TOLLING

  1. #1
    I am trying to find out how much unlawfull presence I accrued and I found this, I thought this might help people who are in my situation.

    What is tolling?

    For aliens who were lawfully admitted or paroled into theUnited States, "unlawfully present" periods are tolled forup to 120 days during the pendency of a timely "nonfrivolous"application for change or extension of status, providing theapplicants were not employed without authorization before theapplication was filed or while it was pending. The Service,recognizing that processing delays have now, in many cases, exceeded120 days, has extended the tolling period for the entire pendency ofthe petition.

    The INS has not defined "frivolous" for this purpose.Presumably the INS will apply the definition of"frivolous" it uses for asylum applications. Under thatdefinition, an application is frivolous only "if any of itsmaterial elements is deliberately fabricated." Such adefinition makes sense in the unlawful presence context as well.

    The INS has clarified how this tolling period works. Under theINS's interpretation, aliens admitted to the United States forduration of status will not accrue unlawful presence based solely onthe denial of a change of status application, if the denial was notbased on ineligibility due to a status violation. If, however, thechange of status application was denied because of a statusviolation, unlawful presence begins accruing as of the date of thedenial. For aliens admitted for a date certain, unlawful presencebegins accruing as of the date the I94 expires, if the denial wasissued before the I94 expired and the denial was not based onineligibility due to a status violation. If the denial was issuedafter the I94 expiration date, but during the 120-day tollingperiod, and the alien meets the requirements of the statutorytolling provision, unlawful presence accrues as of the date of theService's decision. If, however, the denial was issued after the I94expiration date and after the 120-day tolling period, unlawfulpresence begins accruing as of the 121st day.

  2. #2
    I am trying to find out how much unlawfull presence I accrued and I found this, I thought this might help people who are in my situation.

    What is tolling?

    For aliens who were lawfully admitted or paroled into theUnited States, "unlawfully present" periods are tolled forup to 120 days during the pendency of a timely "nonfrivolous"application for change or extension of status, providing theapplicants were not employed without authorization before theapplication was filed or while it was pending. The Service,recognizing that processing delays have now, in many cases, exceeded120 days, has extended the tolling period for the entire pendency ofthe petition.

    The INS has not defined "frivolous" for this purpose.Presumably the INS will apply the definition of"frivolous" it uses for asylum applications. Under thatdefinition, an application is frivolous only "if any of itsmaterial elements is deliberately fabricated." Such adefinition makes sense in the unlawful presence context as well.

    The INS has clarified how this tolling period works. Under theINS's interpretation, aliens admitted to the United States forduration of status will not accrue unlawful presence based solely onthe denial of a change of status application, if the denial was notbased on ineligibility due to a status violation. If, however, thechange of status application was denied because of a statusviolation, unlawful presence begins accruing as of the date of thedenial. For aliens admitted for a date certain, unlawful presencebegins accruing as of the date the I94 expires, if the denial wasissued before the I94 expired and the denial was not based onineligibility due to a status violation. If the denial was issuedafter the I94 expiration date, but during the 120-day tollingperiod, and the alien meets the requirements of the statutorytolling provision, unlawful presence accrues as of the date of theService's decision. If, however, the denial was issued after the I94expiration date and after the 120-day tolling period, unlawfulpresence begins accruing as of the 121st day.

  3. #3
    This mean that if you filed for AOS before the I-94 expired and later on your AOS is denied, then you did NOT accrue any unlawfull presence up until the day the BCIS makes a decision.

    The unlwafull presence start kicking in THE DAY OF THE DENIAL.

    Of course, as stated above, all this is only good if your AOS application was TIMELY AND "FRIVOLOUS".

  4. #4
    I meant "NON-FRIVOLOUS"

    After re-reading this thing, I wonder if what I said is right...

    Its looks like once the AOS is denied, the INS starts counting unlawfull presence on the 121st day after I-94 expired.

    Can anyone tell me if this the law the INS follow about unlawfull presence after an AOS was denied?

  5. #5
    The more I read it , the less I know what they mean...it looks like this thing is all messed up???

  6. #6
    Maybe I am making a big mistake, since this is for CHANGE OR EXTENSION OF STATUS, not AOS right?

    I am just trying to have some comments on this...

  7. #7
    I believe that the tolling rules only applies to non-immigrants (change or extension of status) and not to immigrants (AOS).

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