USCIS and Foreign Embassies

[Mo]

Ok here is a riddle... Please read.

There is a friend of mine who lost his passport in the US recently, and he is about to attend familybased AOS interview (His dad is a USC, and he is over 21). He is also filing under 245i (with physical presence condition) - because he overstay his student visa recently. He came to the country on an F1 visa in Summer of 2001, and has a photo-copy of his lost passport and student visa for his interview to proof his inspection upon entry. The thing is, he has all the correct documents to take for his interview, but there is this issue about his physical presence condition to qualify him for the 245i, especially his presence in the US on Dec 20, 2000.

To be eligible for the 245i Physical Presence Condition, he had to be in the country Dec 20, 2000 - That's what the law says. Well, he was in the country that day on a family vacation (not on F1 visa - this was an earlier trip he made before coming back directly to the US as a foreign student). He came through CANADA border to visit his family on that trip, and he doesnt recall (and somewhat sure) not getting an I94 when he came through CANADA via car during December of 2000. He was accompanied by USC friends when he got through the border... so he wasnt questioned the usual "residency" questions at the CANADA/US border. He only stayed in the US for a brief period, and went back to CANADA.

So, since he lost passport recently, will the USCIS officer at his interview "believe" he came to the US during that period (even though he had no I94 record for that CANADA to US trip, considering has receipts to proof he was in the US that period, around DEC 20, 2000) for him to adjust?

I should also mention, that he got to CANADA on a visa before he entered the US - and doesnt have a photo-copy of the CANADIAN visa from his lost passport, will this be an issue during AOS interview? - it seems questionable since he came to the US on that trip without an I94. Will they check his background with CANADIAN government for issuing him a visa at that time?

I know a good immigration is the right person that he should seek advice from, but I didnt know what to make out of this case... except that he should be able to adjust right?

Thanks

[Mo]

Ok here is a riddle... Please read.

There is a friend of mine who lost his passport in the US recently, and he is about to attend familybased AOS interview (His dad is a USC, and he is over 21). He is also filing under 245i (with physical presence condition) - because he overstay his student visa recently. He came to the country on an F1 visa in Summer of 2001, and has a photo-copy of his lost passport and student visa for his interview to proof his inspection upon entry. The thing is, he has all the correct documents to take for his interview, but there is this issue about his physical presence condition to qualify him for the 245i, especially his presence in the US on Dec 20, 2000.

To be eligible for the 245i Physical Presence Condition, he had to be in the country Dec 20, 2000 - That's what the law says. Well, he was in the country that day on a family vacation (not on F1 visa - this was an earlier trip he made before coming back directly to the US as a foreign student). He came through CANADA border to visit his family on that trip, and he doesnt recall (and somewhat sure) not getting an I94 when he came through CANADA via car during December of 2000. He was accompanied by USC friends when he got through the border... so he wasnt questioned the usual "residency" questions at the CANADA/US border. He only stayed in the US for a brief period, and went back to CANADA.

So, since he lost passport recently, will the USCIS officer at his interview "believe" he came to the US during that period (even though he had no I94 record for that CANADA to US trip, considering has receipts to proof he was in the US that period, around DEC 20, 2000) for him to adjust?

I should also mention, that he got to CANADA on a visa before he entered the US - and doesnt have a photo-copy of the CANADIAN visa from his lost passport, will this be an issue during AOS interview? - it seems questionable since he came to the US on that trip without an I94. Will they check his background with CANADIAN government for issuing him a visa at that time?

I know a good immigration is the right person that he should seek advice from, but I didnt know what to make out of this case... except that he should be able to adjust right?

Thanks

[mmorales]

He should get affidavits from friends and family and he should write one about his entry through the Canadian border.

myronmorales@hotmail.com

[Mo]

mmorales

Thanks for the response. But I don't think that will work, according to the law... read below:

"The USCIS will evaluate all evidence on a case-by-case basis and will not accept a personal affidavit attesting to your physical presence on December 20, 2000, without requiring an interview or additional evidence to validate the affidavit."

is that right? - or affidavits will only work in condition with the AOS interview?, which he will attend one.

Thanks again.

[familybased]

You friend has to present few documents to validate his physical presence during the period time. Sometimes one is enough. For example, a credit card receipt with his name and signature was dated on 12/21/2000. You can ask your friend to put together all the evidences. The receipts must have his name and were dated. The date should be reasonably close to 12/21/2000. If you friend can convince himself by checking his documents, I do not see a reason that INS interviewer refuses to accept them as a concrete evidence of his physical presence at the time. I do not think the loss of his passport has anything to do with 245i, but he needs to get a new passport, which is valid more than 90 days and I-94 (original). If his evidence is solid and true, by all means file it. If they are questionable or fake, your friend definitely does not want to try it. Misrepresent document gain immigration benefit is one of big No-No

[Mo]

Thanks familybased.

My friend has an iternary receipt for his visits within the US (from a travel agency in the US - but no credit card receipt - he paid a small fee to get this iternary). I has his name on it, and dated Dec 20, 2000. He can also obtain affidavits from his friends and families in the US... from the sound of it - he is also set (according to the requirements for the physical presence).

I was just worried about... if they focus on more on how did he get in the country then, and why didnt he get an I94 at that time at the US/CANADA border... and so on. He does have an I94 (with D/S) for his second trip to US, as a foreign student. Plus, he never worked illegaly, or have any criminal record. He just overstayed his visa due to financial problems, therefore he couldnt maintain his status. I would like to this as a strong case... wouldnt you agree?

[familybased]

Hi Mo,

If he can benefit 245i, how he got into the country would become irrelevant. 245i makes him adjustable even through he got in without inspection. he should just gather as many as evidences possible.

[Mo]

Thanks, Thanks, Thanks....

Is it true that 245i cases take longer than I485 processing times? - or is 245i just a final step of the I485 itself?

[familybased]

It will be the last step to become a LPR, but a 245i applicant may go through a tougher interview because they have to explain one or few previous status violations.

[Mo]

familybased

What about affidavits? it sounds like they can be used for the interview (read above).

I am sure a good immigration attorney can make his case look strong, but the final decision is ofcourse with the USCIS officer.

Out of curiosity, how can USCIS determine the "authenticity" of a 4 years old receipt? I am sure there are ways they can, but would like to hear your opinions, or previous experiences.

Thanks