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Is an overstay forgiven forever by AOS

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  • Is an overstay forgiven forever by AOS

    A man married an USC in 1999, after entering the US in 1998 on B1 visa and overstaying a little over a year, applyed for AOS and received conditional GC in 2000. Successfully removed conditions in 2003. Divorced and left the US in 2005.
    The present job requires him to travel to the US in near future. Does he have a 10 year bar or was his overstay from 1998/1999 forgiven and forgotten at the time of AOS?

    He is going to apply for B1/B2 visa next month.

  • #2
    What happened to the green card? Has he abandoned it?


    • #3
      His overstay is forgiven the moment his AOS is approved.
      Why does he need a B1/B2? If he got his GC in 2000 and left in 2005, won't his GC still be valid? He doesn't even need a reentry permit unless he left in in January/February 2005.


      • #4
        If he enters on a visitor visa instead of the green card won't that be considered an abandonment of PR status?

        I remember a recent poster who entered on vistor visa because he "forgot" his green card. And despite having lived in the U.S. for a number of years is now stuck outside of the U.S. applying for another green card via consular processing.

        I don't know if that poster ever gave us all the facts but I am pretty sure that if you enter on a vistor visa as a permanent resident you are committing an illegal entry


        • #5
          An overstay is not a bar to AOS based on immediate relative status. Since INA specifically lifts this bar for immediate relatives of citizens, it is not considered a negative factor (by itself) for adjudication purposes.
          The overstay is irrelevant for AOS purposes, one year or ten years, it does not matter.
          However, if the person is trying to leave the United States before approval of AOS the 10 year ban will be applied. No advance parole document is going to prevent this from happening.
          This is not legal advice, if you require legal help contact an attorney.


          • #6
            If the person is already a conditional resident he or she is statutory ineligible for a non-immigrant visa. Upon approval of AOS, the person becomes an immigrant. An LPR can adjust status back to non-immigrant under certain circumstances and it's only then when the person could qualify for a B-type visa. Trying to enter on a B visa will be considered, at the very least, a material misrepresentation and will create a world of problems for the applicant. The alien could also be charged with fraud and misuse of a visa under the U.S.C. because a documented immigrant is trying to pass as a non-immigrant (fraudulent conduct). This is no misdemeanor but a full blown felony offense under federal law.
            Consult with an attorney if you require legal help.


            • #7
              sorry I left out the important information: He officialy abandoned his residency by returning GC in the embassy.


              • #8
                ...and while not important for the above case, I wanted to point out that, under some circumstances, entering the US on visitor visa does not negate someones permanent resident status.

                "9 FAM 42.22 N10 Visitor Visa Issuance Not Relinquishment of Resident Status
                a. An alien is not ineligible for classification as a returning resident alien solely because the alien was previously issued a visitor visa during a stay abroad as a matter of convenience when time did not permit the alien to obtain a returning resident visa. [See also 9 FAM 41.31 N12.]

                b. For example, a permanent resident alien is temporarily assigned abroad but employed by a U.S. corporation. The alien has been outside the United States for more than one year and thus may not return to the United States using the Form I-551, Permanent Resident Card. The alien has never relinquished permanent residence in the United States; has continued to pay U.S. income taxes; and perhaps even maintains a home in the United States. The fact that the alien was issued a nonimmigrant visa for the purpose of making an urgent business trip would not reflect negatively on the retention of resident status.

                c. The consular officer shall not require a visa applicant to relinquish the Form I-551, as a condition to immigrant or nonimmigrant visa issuance."


                • #9
                  d u m b a s s. Why return his greencard to the embassy?

                  Stupidity by default should not be forgiven ....ever.


                  • #10
                    thanks to everybody who tryed to help. sorry for the missing info about abandoning GC. Any more thoughts?

                    Marasmus: What is the right thing to do if one permanently moves to another country and occasionally visits the US? not everybody wants to live in the US forever.


                    • #11
                      But somebody who leaves family behind and is still subject to legal ties (a legal and binding marriage), who already has applied and secured LPR status through AOS will have one very difficult time obtaining a non-immigrant visa.
                      What is going to prevent this person from doing the same thing all over again? And remember, whatever that reason may be, it must be proven to the satisfaction of the already suspicious officer by clear and convincing evidence.


                      • #12
                        One who has become a LPR should first become USC before moving, if for any reason theres a chance however slim that one will EVER want to RETURN/VISIT the USA. Or their kids may want to come here. Why make them start from square one?

                        Why should one return the green card then later try to visit here?

                        To me, its like divorcing someone who loves you then trying to get a one night stand with the same ex.


                        • #13
                          Houston: there are no legal ties - just an ex-wife in the US.

                          Marasmus: obtaining a citizenship would be a smart move, but it is too late now. (I was told once that getting a citizenship should be an emotional rather than a logical decision.)

                          I was asked for the opinion regarding the situation discribed above. I couldn't answer with certainty if that old overstay means 10 year bar now that he is no more PR or was "cured" by AOS.

                          I know that the old overstay wan't be a "+" when he applys for visitor visa. But on the other hand, would he return his GC if he would still have an immigrant intent?! I guess we'll find out next month what CO thinks about it..


                          • #14
                            ANOTHER LYING FASCIST HERE !!!



                            GOOD LUCK !!!


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