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sphyrapicus3 : What do you think?

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  • #16

    I did a "search" on the unlawful presence... and here is a portion of an article I found in

    INS General Counsel Issues "List of Resolved Issues" to AILA
    Posted Jan 29, 2000

    As some of you may be aware based on earlier issues of the Immigration Law Bulletin of the Law Office of Sheela Murthy, there have been some very successful liaison meetings between the INS General Counsel and attorneys representing the American Immigration Lawyers Association (AILA). Based on the liaison meetings, INS General Counsel Bo Cooper wrote a letter on December 10,1999, confirming the common understanding as to certain legal issues. Many of these issues had been negotiated by AILA and had been the subject of controversy and confusion between the INS and attorneys who represent immigrants and their employers.

    Mr. Cooper pointed out that these understandings are merely legal interpretations, rather than regulations and hence do not have the force of law. Therefore, they could be subject to change. Still, they reflect the current understanding of what the law means.

    The first five items relate to the 3-year and 10-year bars under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 or IIRAIRA. As many of you are aware, the 3- and 10- year bars operate against a person who is "unlawfully present" (a term specially defined by the INS, which includes at least those who have overstayed the expiration date on their I-94, or entered without inspection) for certain time periods. The time periods for the bars to apply when the person has been unlawfully present are at least 180 days (for the 3-year bar) or one year (for the ten-year bar). A person who is unlawfully present for the 180 days or 1 year, as the case may be, and then leaves the U.S. voluntarily, will be barred from re-entering for the next 3 or 10 years.

    1) If a person's I-94 card indicates "D/S" (duration of status), which is common for persons in F-1, F-2, J-1 or J-2 status, the person does not accrue "unlawful presence" which would render such a person subject to the 3-year or 10-year bar. Such unlawful presence time would apply if the person receives a removal order from an immigration judge or if the INS makes a finding, usually in connection with a denial of an extension of stay or change of status, that the person is out of status.


    Thanks for you generous suggestions. What is FOIA? According to the above paragraphs, if the USCIS finds something on me, they would let me know about it. Again, I am in "lawful status", but there was a period of "unlaful status" in the past. I think when I get on the AOS track, the USCIS will make their mind up about what to do. So far.... I have no idea what the penalty would be for someone who have overstayed 180 days with "D/S" on their I94? I definetly know that indicidual is not subject to 3/10 yrs bar, because they are above the 180 days rule.


    • #17
      In a nutshell, FOIA allows you to request from govt agencies information they have on you. Check out this link on how to request those information:

      As for the penalty if the 3/10yrs bar is not applicable, I don't have the slightest idea. What I'm most worried about if they found out about your out-of-status and then scrapped your AOS process alltogether. Can you file waiver against that or appeal the decisions, or must you exit the country immediately?


      • #18
        I have no idea eithr what the consequences could be. Let's hope it's not a bad one.


        • #19
          Although it seems a little late to jump into the middle of this game, there is an important point that I haven't seen addressed yet. The > 180 day out of status is not affecting this applicant by way of teh bar, it is affecting him under the language oif Section 245, the section of the Act that deals with adjustment of status. AOS is a privelege, not a right, and it is only asfforded to those in certain situations. One of those qualifications is that they are either currently in-status, or have been out of statsu less than 180 days. While a previous overstay would affect an applicant trying to enter, it does not appear to affect an adjustment applicant, as long as he is currently in status.


          • #20

            What you quoted is dated Jan, 2000.
            In my reply to you I quoted much later memos.
            When you click on links ('search' results on try to get the latest, updated memos rather than ones dated 1997-2000.
            Keep in mind relevancy.

            I don't think you should worry about 3-10yr bar if they discover you are out of status at the time of interview/adjudication.
            But clock will start ticking as soon as they do discover it and most likely you won't be able to adjust status to LPR, bevause in order to adjust you must either be in valid non-iimigrant status or be a spouse of USC or fall under certain, limited categories that, as I understand, don't and can't apply to you.

            I could give you fairly clear,accurate info. on this, but it takes at least an hour and half to read ALL those regulations,cables, hypotheticals, cases, memos and etc. and relate those to your SPECIFIC case.
            And before one is done with all the reading steam comes out of the head (there are TOO many relevant/little details,seemingly contradicting regulations,memos,cases, case-scenarios and etc.)
            This is one of the most complicated sections of INA: no wonder everyone here is confused and can't give you advise you are looking for.

            In short:

            1. Knowledgable Attorneys don't charge you $150-$350/hour for nothing.

            2. I am NOT an Attorney.

            3. I suggest you consult one.

            Finally, choose your Immigration Attorney wisely: Most Immigration Attorneys are confused about these regulations ('unlawful presence' vs. 'unauthorised presence' and eligibility for AOS for holders of I-94 with D/S endorsement) and give misleading advises.

            Good luck,



            • #21

              Thanks for the input - you answered the crucial part of my question (and I hope it's right ). I also do think that the "less than 180 days" overstay is a language of section 245, according to other immigration sources too.


              Wouldn't you agree, if it's less than 180 days overstay (as Katycab puts it), its possible to adjust under section 245 AOS?


              • #22

                Wheter I agree or not is irrelevant.
                You are dealing with INA and BCIS, so it is better for you if an Expert in the field, particularly in AOS agrees with you.

                As to 180 days overstay, I beleive you refer to Section 245(k)(2)(A),(B),(C).
                Note the language of particular sub-section:

                [quote] 245(k) Innaplicability of certain provisions for certain EMPLOYMENT-BASED immigrants

                (2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days-

                (A) failed to maintain, continuosly, a lawful status; [end quote]

                My attention was captured by 'EMPLOYMENT-BASED IMMIGRANTS'.

                Are you Employment based immigrant?
                Or is there other sub-section of 245 you refer to?
                Or is 180 days rule general, meaning it applies to ALL AOS filers?

                In any case, my only suggestion to you is that you should consult a GOOD(!) Immigration Attorney.

                Good luck,



                • #23
                  Thanks E.


                  • #24
                    No problem, Mo


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